An unfortunate detention incentive

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a surprising ruling with remarkably broad implications, the U.S. military has been told that it can seize suspected terrorists anywhere outside the United States, send them to the U.S.-run Bagram detention facility in Afghanistan, and thereby deprive them of the right to challenge their detention in a federal court.

Although the court didn’t address the issue, treating terrorism suspects this way is not supported by the laws of war as interpreted by the U.S. Supreme Court -- that Court has not authorized indefinite detention of individuals seized far from the battlefield.
The unanimous decision in Al Maqaleh v. Gates was issued last week by Judges David B. Sentelle, David S. Tatel, and Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. The case involves two Yemenis and a Tunisian, one of whom was arrested in Thailand and another in Pakistan, and all of whom were transported to Bagram by U.S. authorities and imprisoned there. Deemed “enemy combatants” when they were seized, they've been at Bagram, without charge or trial, for the past seven years. (Prior IntLawGrrls posts here and here.) (credit for U.S. Army photos made at BTIF, the Bagram Internment Theater Facility)
On its face, the situation of detainees brought to Bagram from outside of Afghanistan would seem to be similar to that of the detainees at Guantánamo Bay, who the Supreme Court in Boumediene v. Bush (2008) ruled do have the right to challenge their detention in a U.S. court.

► Both cases involve imprisoning foreign suspected militants captured abroad and brought to a U.S. military base for indefinite confinement. In Boumediene, the Supreme Court ruled that detainees do have habeas corpus rights because the U.S. has de facto sovereignty over its naval base in Cuba pursuant to a century-old lease. In Maqaleh, the appellate judges acknowledged that the United States appears to have similarly complete control over its Bagram facility in Afghanistan.
► As in Boumediene, the Court of Appeals also acknowledged in Maqaleh that the hearings the U.S. military was giving detainees at Bagram did not constitute due process; in fact, they were even worse than those provided at Guantánamo Bay. Although the hearings have improved over the past year under the Obama administration, the new Detainee Review Board system still doesn’t give Bagram prisoners the right to be represented by a lawyer or even to see the evidence against them. (Now detainees are appointed a “personal representative” who is not a lawyer, and may call witnesses who are “reasonably available” to testify. They still can’t see classified evidence, which may constitute the bulk of the government’s case against them.)
Still, although all this weighed in favor of the detainees’ demand for judicial review, the D.C. appeals court ultimately ruled last Friday that the “practical obstacles” of granting Bagram detainees habeas rights were just too great (p. 16), given that the prisoners are located in an active theater of war halfway across the world.
But should that determine whether the detainees are entitled to due process? Consider these responses:

► As American University Law Professor Steven Vladeck has pointed out, the only reason these detainees were in that theater of war is because the U.S. government had abducted them from other countries and sent them there. The ruling in Maqaleh thus creates a perverse incentive for the U.S. government to move every terror suspect seized anywhere outside the United States to a U.S.-run offshore detention facility, in order to imprison the suspect indefinitely and to evade judicial review.
► As Salon commentator Glenn Greenwald has put it, as a result of Maqaleh,

'the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.'

If the detainees had been lucky enough to get sent to Gitmo, they might have had a federal court hearing by now.
Meanwhile, it’s not clear that the United States even has the legal authority to continue to detain anyone at Bagram.
The United States argues that its indefinite detention authority stems from the ongoing conflict in Afghanistan. But the war against the Taliban and al Qaeda is not an international armed conflict between nation-states. And there’s no legal authority for detention in a non-international armed conflict such as this one, where Afghanistan has its own domestic laws and criminal justice system. That may be why President Hamid Karzai during his most recent visit to the United States pressed President Obama to turn over the detention facilities to Afghan control as soon as possible.
The Obama administration says it eventually wants to do that.

But it says it doesn’t have enough confidence yet in the integrity and independence of the Afghan justice system to trust that the guilty will actually be imprisoned and the innocent will be allowed to go free. The United States has plans to train judges and lawyers at Bagram and to try to root corruption out of the justice system, at least in national security cases. But that effort has barely begun, and could take years to really have an impact. In the meantime, the U.S. is significantly expanding the prison facility.
Even if the Obama administration eventually does turn over Afghans arrested in Afghanistan to the local authorities, this question remains:

What to do with the rest of the prisoners – the ones who were the subject of the ruling in Maqaleh?

Some military officials want to keep the Bagram prison available for insurgents captured outside Afghan borders. U.S. military leaders in Afghanistan, meanwhile, fear that would inflame local tensions and make Bagram, like Gitmo, another recruiting tool for insurgents. Recent reports of prisoner abuse at Bagram only fuel that concern. But the prison expansion – which is reportedly adding three new detention housing units – suggest that plan has significant support.
International law is apparently not figuring much into these plans. If the laws of war had any say here, captured insurgents would be detained in the countries where they’ve been arrested or allegedly committed crimes. After all, the United States is not supposed to have detention facilities around the world – a point implicitly acknowledged when, upon taking office, President Obama publicly pledged to close most of them – from Guantánamo Bay to the CIA’s secret detention facilities around the world.
Bagram is the one prison he’s wavered on. Unfortunately, by its decision in Maqaleh the U.S. Court of Appeals in Washington has just handed Obama a big incentive to keep it open.

A strategy of gender fundamentalism in Afghanistan?

(It's our great pleasure to welcome IntLawGrrls alumna Penelope Andrews, who contributes this guest post on a critical issue also addressed in today's post just below it)

As President Barack Obama prepares to give a speech this Tuesday on his administration's strategy going forward in Afghanistan, it's time to ask what role the cause of women in Afghanistan should play in reaching this decision. It's not evident that any of President Obama's advisors are giving any weight to the cause of women as a relevant factor in determining future strategy in Afghanistan.

Eight years is a long time for the prosecution of a major international war. It is therefore appropriate to ask:

What has been achieved in the cause for women and their status in Afghanistan's life?

Undeniably, there have been a few notable gains, such as the increasing number of girls who now attend school, and the presence of some female parliamentarians. But for the most part the fundamental gains required for Afghan women to achieve full citizenship have not transpired. Women continue to remain hostage to President Hamid Karzai’s equivocation and compromises -- as well as to the authoritarian traditions of warlords who support, and are supported by, President Karzai.

Afghan women are caught up in violence from all sides:

► from U.S. and NATO forces who drop bombs on them or raid their homes and detain indefinitely family members;

► to an unrelenting reign of terror from the Taliban groups who persist in their strategy of denying women basic rights and who act to undo the few gains and rights that Afghan women have in the interim obtained or may gain;
► to violence committed by warlords inflicting harsh punishments on women and seeking to confine them to traditional roles.

When it comes to women, the war has been another disaster, and has obscured both the continuing denial of their civil and political rights and the deleterious impact of that denial. Women's hopes, raised during the early days of the invasion, have turned into a poignant despair. With the warlords and the Taliban controlling about ninety percent of Afghanistan, it's not surprising to hear, as one notable Afghan women activist put it, that the invasion has led to “no positive change” regarding the situation of women. (credit for Office of U.N. High Commissioner of Refugees photo of Afghan women)

Given these conditions, a key issue is to provide for the basic rights of women. Given past experience, there is no reason to believe that sending more troops will secure this goal. Can this aim be achieved through negotiations and reduction of violence? That is where the focus should be, not on adding more troops to wage war. Moreover, securing the rights of women is probably the best way to aid Afghanistan's indigenous democracy.

To be sure, the Taliban in the past has been chronically against women's rights, but could the United Nations broker an agreement whereby the war would be ended in exchange for a guarantee by the Taliban and the Karzai government to respect and promote women's rights?What exactly would this entail? First, the international community, through the United Nations, should adopt a policy akin to a zero tolerance approach to the pursuit of gender equality and the eradication of violence against women, a gender fundamentalism if you will. This means that women’s equality, along with the campaign to provide democracy, would be the raison d’être for international engagement.

This must be the commitment of the international community. The role and status of women would become an important measure of the achievement of democracy in Afghanistan, perhaps a harbinger of democracy.

(A longer version of this post appears at this month's issue of Asian Currents, the e-bulletin of the Asian Studies Association of Australia, the country where Penny's taken up a Chair in Law at La Trobe University)

Obama & Afghanistan

‘Who is the real enemy and how serious is the problem?
How many forces are needed?
To what end?’

Answers to these questions are essential to determining U.S. policy in Afghanistan, according to Morton Abramowitz (below right), formerly U.S. Ambassador to Thailand and Turkey, among many governmental posts, and a founder of the International Crisis Group. (photo credit)
Abramowitz’ critique was among the many advanced at “Obama’s Afghanistan: The Media and the War,” a forum in which yours truly took part last weekend in Los Angeles. Organizers were Ambassador Derek Shearer, Occidental College, and Geoffrey Cowan, Center on Communication Leadership & Policy, University of Southern California.
Even as Afghanistan emerges as the top story in the United States, newsman Bill Schneider observed, the media concentrate almost exclusively on troop numbers – not so much the on number of troops actually needed, but rather on the number that Obama will send.
Other experts at the forum included Peter W. Galbraith (below left), onetime U.S. Ambassador to Croatia, now in the news for having been fired as the United Nations’ Deputy Special Representative to Afghanistan on account of his efforts to expose what he called “colossal fraud” during the country’s presidential election. (photo credit) The contest, which began in August (prior post), ended last week with the declaration that Hamid Karzai had won re-election after his rival withdrew from a scheduled runoff. (Despite widespread agreement regarding irregularities, the U.N. General Assembly yesterday gave the result its vote of confidence.)
In a speech available in full here, Abramowitz contended that electoral fraud was a foregone conclusion: “The notion that decent elections could be held” – given problems of security, cheating, and corruption – “boggled my mind.”
Galbraith begged to differ, contending that the "free, fair, inclusive, and transparent" election mandated by Afghan law could have occurred. What doomed the process, Galbraith maintained, were avoidable failures; especially, the failure to insist that national election commissioners be truly independent from Karzai, and the failure to cancel remote and insecure polling stations, “ghost-voter” sites ripe for fraudulent exploitation.
Abramowitz and Galbraith did agreed on a key point. As the former put it:

‘The election was supposed to be a defining moment, which it was. But not the one they wanted.’

(My 2007 post on elections and democracy is here.)
Still another point seemed to garner the forum’s consensus: the election left Karzai’s government weaker, not stronger. That and other problems render the sending of more troops difficult – in the view of some, ill-advised. Meaningful results likely would require longterm engagement even if Afghanistan enjoyed legitimate leadership. In the absence of any such “credible local partner,” Galbraith argued, “The mission that the troops would be sent to do cannot be accomplished.”
Many at the forum referred to past U.S.-led interventions – mistakes at the Bay of Pigs and in Vietnam, lessons from Bosnia and Iraq.

'Americans hate political wars,'

Schneider (above) observed, and warned that Afghanistan, a war about which we've posted since our founding, but which is newly returned to American consciousness, might soon fall into that disfavored category. (photo credit)
Many experts called for greater attention, by the media and by policymakers, to human rights and humanitarian issues; lamented were the conflict’s consequences on civilians, not only in Afghanistan but also in border areas of Pakistan, as well as the continued lack of personal security and the continued oppression of Afghan women.
Of particular interest was the presentation of Katherine Spillar (left), co-founder and Executive Vice President of the Feminist Majority Foundation and a longtime advocate on behalf of women in Afghanistan. (photo credit) “We promised a Marshall Plan,” Spillar said of U.S. involvement since 2001, “and we’ve delivered very little of that.”
For many at the forum, disengagement was equally unpalatable – they feared withdrawal would both reverse whatever changes have occurred and risk restoration of a safe haven for terrorists.
Cross-cutting considerations like these tie the policy hands of President Barack Obama, who’s reassessing U.S. policy regarding the conflict in Afghanistan. (map credit) Obama is thought to be seeking some midway between escalation and withdrawal. The forum confirmed that finding such a midpath to success is devilishly difficult.

... and counting ...

(Occasional sobering thoughts.) U.S. Senator Dianne Feinstein (D-Calif.) (below left) said this yesterday about the ongoing NATO role in Afghanistan:

'My view is that the mission has to be very clear. I believe it is not now. ... I don’t believe we can build a democratic state in Afghanistan. I believe it will remain a tribal entity.'

Not encouraging words from the Chair of the Senate Select Committee on Intelligence. But not much of a surprise, either, given recent news from that Central Asian country:

► An airstrike 10 days ago is said to have killed as many as 90 persons near Kunduz, and though it is hard to say how many were "militants," it is known that among the injured was a 10-year-old boy. NATO is investigating the decision to strike of German troops, who place the death toll closer to 50. In Berlin yesterday, Chancellor Angela Merkel (below right) promised "full clarification," "and expressed regret for possible civilian casualties, stating as parliament renewed debate regarding Germany's ongoing involvement:

'Every innocent person who is killed in Afghanistan is one too many.'

► Just this weekend, Afghanistan endured "a wave of bombings, ambushes and killings" that left 39 civilians and 5 U.S. troops dead.

► The passage of 3 weeks since voting for President has yet to yield a winner, and tarnishing indications that incumbent, Hamid Karzai, will be the likely winner is a "chaotic count ... marred by allegations of widespread irregularities including phantom polling stations and stuffed ballot boxes."
As for Iraq, scattered violence persists even as the United States continues its plan to withdraw combat troops before next summer comes to an end.

With all this in mind, here's the casualty count since our post 6 weeks ago:

► Iraq Body Count reports that between 93,081 and 101,578 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 562 and 572 deaths in the last 6 weeks. According to the U.S. Defense Department, 4,343 American servicemembers have been killed in Iraq, representing 15 servicemember deaths in the last 6 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

► Respecting the conflict in Afghanistan, military casualties in Afghanistan stand at 830 Americans and 55 other coalition servicemembers. That's an increase of 67 and 37, respectively, in the last 6 weeks, and a total servicemember casualty count of 1,384.

Afghan women brave violence to protest law

The Afghan Constitution guarantees equal rights for all, yet President Hamid Karzai recently signed a law passed by Parliament that severely restricts Shi'ite women's rights. In particular, The New York Times reported:

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

Despite the April 12th murder by the Taliban of Sitara Achakzai (below right) (credit), an Afghan women's rights advocate and politician, on April 15 200-300 Afghan woman braved a crowd of 1000 counter-demonstrators shouting epithets such as 'whores" and "infidels," spitting on them and pelting them with rocks to march 2 miles to the Parliament, where a few supportive parliamentarians met them to discuss striking the law's most offensive provisions. (Prior post.)
U.S. Secretary of State Hillary Clinton, among others, has expressed her concerns about the law "directly" to President Karzai, who may be able to "unsign" the law since it hasn't yet been published.

On January 26

On this day in ...

... 2004, "in a ceremony at the foreign ministry in Kabul in front of ministers, ambassadors and military officers," Hamid Karzai signed the new Constitution of Afghanistan, to which a loya jirga, an assembly of regional representatives, ad agreed earlier in the month. Karzai then headed the transitional government in post-Taliban Afghanistan. He would be elected President in October 2004. (credit for photo of Karzai, far right, with former king Zahir Shah)

... 1973, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, often called the Montreal Convention in recognition of the city where it was signed in 1971, entered into force. Today this antiterrorism convention has 187 states parties, including the United States.

Pretty good news from the war zone

As Afghan President Hamid Karzai opened the Afghani-Pakistani jirga (tribal council) for peace Thursday, tens of thousands of Shiite pilgrims marched peacefully through Baghdad to a shrine honoring an 8th-century imam, with little of the violence that has marred past celebrations. The only hitch was that Pakistan’s president, General Pervez Musharraf stayed home from the jirga to ponder the need for a state of emergency. Ceding to media, political and diplomatic pressure, he didn’t declare one. His absence from the jirga is not considered a major hurdle to peace building by Afghan officials, as more than 600 tribal leaders, the true power brokers in the region, are in attendance. Tribal elders from Pakistan’s most volatile region are not in attendance either, however, which may lessen the effect of the 4-day meeting, an idea hatched by presidents Bush, Karzai and Musharaff to calm the bloodshed. In an impassioned, if macho, plea to stop the killing, Karzai said the Taliban’s killing of women is tarnishing Afghanistan’s reputation: "It doesn't matter if they kidnap thousands of men, they abducted women!" he said, referring to the South Korean hostages. In reference to other attacks, he said:

"They behead women in the name of the Taliban and Muslims in this country. In Helmand, one woman was nailed to a tree. In Zhari, they cut a woman in half”.

Karzai believes that if Pakistani and Afghan “brothers” unite, the "disaster and cruelty in the two nations will be finished in one day." If over 600 tribal elders can agree on that, perhaps the end is in sight.