Foreign Policy Blogs

Afghan Detainees May Challenge Their Detention – But Not in US Courts

The Pentagon has announced it will allow those prisoners held by the US military in Afghanistan, including the Bagram military facility, to challenge their detention in a new military review system.

The prisoners will be given military officials – not lawyers – to represent them and will be allowed to call witnesses and present a defense before a military review board.

However, many believe the situation at Bagram to be analogous to that of Guantanamo Bay, and that detainees in both facilities should be allowed to challenge their detentions in US courts, as seemingly espoused in the April ruling of U.S. District Judge John Bates.

However, in response to Bates’ ruling, the Obama administration has argued that the two situations are quite different.  Due to Bagram’s location in Afghanistan – a specifically delineated ‘theater of war’ – the Geneva Conventions do allow for detention of prisoners of war captured there.

According to the administration, a purely military review with no resort to habeas proceedings in US courts is in this case sufficient.

But while this might seem a logical argument, the thorny problem remains that some Bagram detainees are non-Afghans, many of them captured in other countries and ‘rendered’ to Bagram, rather than Guantanamo.  Bates’ decision – noting the similarity of the Guantamo and Bagram situations – was with respect to an application made by non-Afghan detainees captured elsewhere and held at Bagram.

While the resolution of this issue will be key for US military and judicial decision makers for years to come, whether it will have any effect in relations on the ground – after 8 years of war and detention – is questionable.

 

Author

Lisa Gambone

Lisa Gambone is a NY attorney who has provided pro bono work for Human Rights Watch, the ICTR Prosecution and Lawyers Without Borders, first while practicing at a large law firm in London, now independently. She has also spent time at the Caprivi high treason trials in Namibia and at human rights organizations in Belfast, London and New York. She has helped edit and provided research for several publications, including case books on the law of the ad hoc tribunals and a critique of the Iraqi Anfal Trial. She holds a JD specializing in International Law from Columbia University, an MA in International Economics and European Studies from Johns Hopkins SAIS, and a BA in International Relations - Security & Diplomacy from Brown University. Here, she covers war crimes and international justice.