Could Afghanistan be the Next Guantanamo?

When Pres. Barack Obama issued an executive order just hours after taking office announcing that he planned to close the detention facilities at Guantanamo within a year, few were happier than those of us who were down at Guantanamo Bay monitoring the irreparably flawed military commissions. As human rights advocates, we had been lobbying for Guantanamo’s closure for years and hoped the decision would be a precursor to ending other “war on terror” abuses.

But while Obama has signaled a clear break with some of the most abusive Bush Administration practices – halting the unfair military commissions, renouncing torture and directing the CIA to abide by the same interrogation standards approved by the military – the Obama Administration has made a number of disappointing decisions that quietly signaled support for many of Bush's “war on terror” policies.

One of those decisions came late last week, when administration lawyers upheld the Bush Administration position that persons picked up around the world but transferred to Afghanistan and detained by U.S. forces there are not entitled to habeas corpus rights – that is, the right to challenge the grounds of their detention in U.S. courts. The decision would not be so troubling if the detainees being held there had any other legal recourse, such as a functioning Afghan judicial system Unfortunately, they do not.

More than 600 detainees are being held at Bagram, the U.S. detention facility in Afghanistan, many for several years. Few have seen lawyers or had access to a court. Although the International Committee of the Red Cross visits Bagram, little public information is available about the detainees. However, some are known to have been picked up in other countries – Thailand, the United Arab Emirates and Somalia – and then transferred by the United States to Bagram. These men are no different from the men being held in Guantanamo, but for the fact that they were brought to Afghanistan rather than Cuba. They should be granted habeas rights. The United States cannot use Afghanistan as another Guantanamo in which to hold people from other lands, unbound by any law.

The detainees captured in Afghanistan may not be entitled to habeas rights in the United States, but they still cannot be held indefinitely without an impartial process to review the grounds of their detention. International law provides people detained in civil wars the right to a process to challenge the ground of their detention, ideally before local courts. The United States, however, has not provided any such process. The detainees in its custody – some of whom may have been picked up by mistake – have no way to contest the allegations against them, and often don’t even know what the allegations are.

The dangers of holding terrorism suspects without review have been illustrated all too vividly by Guantanamo, where many of the men turned out to be innocent, the victims of having been turned over to U.S. forces in exchange for bounty. Holding men who had done nothing wrong did not make the United States any safer. To the contrary, it may well have provided ammunition to those who would do harm to the United States. And it also undermined the fundamental right not to be deprived of one’s liberty without legal basis.

As the Obama Administration prepares to send more troops into Afghanistan in the hope of defeating the resurgent Taliban, it needs to win the hearts and minds of the Afghan people. It can only do that by upholding the valuesfor which it claims to be fighting. A good place to start would be ensure that those in U.S. detention are granted lawyers and a meaningful opportunity to challenge the grounds of their arrest.

Stacy Sullivan is a counterterrorism advisor at Human Rights Watch.