Estimates are that the United States has detained many thousands of men since 2011 at Bagram Air Base in Afghanistan. Of course, that’s mostly a guess, because they can only be identified when families report them missing. Tina M. Foster and her colleagues with the International Justice Network (ijnetwork.org) have been fighting for years now, for a very basic right for these prisoners: habeas corpus.
So far, they’ve been unsuccessful at getting any relief, because the Obama administration holds to the Bush regime’s claim that because the prison is in a (U.S. created) war zone, the prisoners cannot be charged or allowed legal defense, presumably until the war is declared ended.
Monday September 16, Tina and colleagues were back in federal court representing three men who are non-Afghans, grabbed by U.S. forces elsewhere and brought to the prison at Bagram. One was 14 years old, and is still in custody at 19.
Scotusblog captured some of the argument yesterday:
With the U.S. seeking to end its active military involvement in the Afghan war by the end of next year, Swingle repeated the government’s recent claim that it “wants to get out of the detention business” at Bagram. Some of the lawyers for the detainees, however, argued that there is no assurance that the U.S. military would free any of those it is holding there even after the main U.S. military force had departed. The U.S. has built a new prison facility on the air base, and that may not be closed down, according to New York attorney Tina M. Foster, who represents three non-Afghan detainees.
Eric L. Lewis, a Washington, D.C., lawyer for a Pakistani national, named Amanatallah, joined Foster in pleading for habeas rights for the Bagram non-Afghan prisoners. His client, Lewis said, was actually captured by British forces in Iraq, and the U.S. military had no reason to ship him to Afghanistan other than to try to keep him out of reach of U.S. courts.
The third lawyer on the detainee side, John J. Connolly of Baltimore, brought into Tuesday’s discussion a plea for special favorable consideration of the plight of minors who get caught up in the war on terrorism. His client, Hamidullah, a Pakistani, was only fourteen years old when he was captured. Government lawyer Swingle, in countering Connolly’s argument, contended that the important fact is that Hamidullah is now nineteen years old, and that is what counts in judging the legality of his detention.
Eric Lewis wrote in The New Yorker, in a piece titled Kafka in Bagram that his client is
a Pakistani citizen, a rice merchant, from a village outside Faisalabad. In 2004, he went on a business trip to Iran (which imports rice from Pakistan) and crossed into Iraq to visit Shia shrines. We know that he disappeared and was not heard from for ten months, when his family learned that he had been detained by British forces in Iraq, handed over to American troops, and then flown to Afghanistan and jailed at Bagram. We know that he was registered originally under the wrong name, suggesting that this may be a case of mistaken identity. We know that, for nine years, he has been prohibited from speaking to a lawyer and permitted only a few telephone calls from his family. He has five children who have not seen him for nine years.
Why was Amanatullah brought to Afghanistan? Rendition of a prisoner from his place of capture to a third country is a grave breach of the Geneva Conventions, as is rendering someone to a war zone. Surely, there were plenty of places to detain him in Iraq. And there was a well-worn route for prisoners to be sent to Guantánamo Bay. Again, the government will not say.
U.S. attorney Swingle argued that releasing Hamidullah would “encourage others to lie about their age
John Connolly, an attorney for the detainees, told the panel that because of a lack of information from officials at Bagram, “we have no evidence that [Khan] was a child soldier.”
The only thing Connolly said he knew for sure was that Khan “was a child.”
International law says using a child under the age of 15 as a soldier is a war crime, the attorney said, so the United States can assert jurisdiction in Khan’s case.
The United States should release all detainees under 18 (including those arrested when they were children) in Guantanamo and Bagram; release those men who have never been charged, and allow the others legal representation.
Most essentially, the U.S. should get out of Afghanistan now, not vaguely in 2014, and not in 2024, when the current status of forces agreement matures.
Hamidullah was only two years old when the U.S. began this war and occupation.