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.