President Obama's promise to close down the detention center at Guantanamo Bay, Cuba, in some six months has drawn intense criticism from the right. Now human rights groups are taking aim at another U.S.-operated detention center: Bagram Airfield in Afghanistan.
Some activists and legal analysts have begun to ask whether Bagram is "the new Guantanamo."
The American Civil Liberties Union on Thursday asked the Obama administration to release some documents about the more than 600 prisoners at Bagram. Melissa Goodman, the lead ACLU attorney on the case, describes the request as "basic information about who they're detaining, how long they've been there, where they were actually captured, and what their nationalities are."
That list is almost identical to the information human rights groups demanded from the Bush administration about detainees at Guantanamo seven years ago. In addition, the ACLU's Bagram lawsuit seeks details about the administration's rules for transfers, prisoner treatment and other records.
The Supreme Court has recently decided three Guantanamo cases. It has not heard one about Bagram.
Benjamin Wittes, senior fellow at the Brookings Institution, says that record puts a greater focus on Guantanamo than the prison camp's population warrants. "Only about 800 people have passed through Guantanamo," Wittes says. "Since the beginning of the war on terror, the United States military has held literally tens and tens of thousands of people around the world. So the focus on Guantanamo as the locus of the problem of detention was always quite delusional."
Now everyone has begun looking at the problem more broadly. The Obama administration has a task force working to establish a global framework for a U.S. detention policy. Human rights lawyers are arguing in court that Bagram detainees should have the same rights as men at Guantanamo.
Tina Foster, executive director of the International Justice Network, who is meeting with former Bagram detainees in Yemen, said in a phone interview the Obama administration has "adopted" the same position as the Bush administration "that individuals captured by the United States anywhere in the world can be taken into custody and held indefinitely without charge, so long as they're not brought to Guantanamo."
In April, Foster won a case against the Obama administration. U.S. District Court Judge John Bates said three non-Afghans being held at Bagram have a right to access American courts. He said a fourth detainee who is from Afghanistan cannot.
Government lawyers are appealing that ruling. They argue that Bagram is a typical overseas military prison in the center of a war zone, where American courts have never had jurisdiction.
This points to a major difference between Bagram and Guantanamo. Everyone at Guantanamo was a suspected terrorist picked up someplace far away. That's true of some Bagram detainees, but others are warriors — Afghans who were caught fighting American troops on the battlefield.
It is pretty widely accepted that those people can stay locked up in Afghanistan without a trial until the end of the war.
Matthew Waxman, who handled detainee affairs for the Defense Department under President Bush, believes courts can draw a distinction between two groups of Bagram detainees. "Saying if someone was captured in Afghanistan, which has the feel of a traditional battlefield, those types of detainees are beyond the scope of judicial review," Waxman says. "But if someone is captured elsewhere and then brought into a facility in Afghanistan — that might present something closer to what we have at Guantanamo."
That distinction raises a question that has been the subject of debate since shortly after Sept. 11.
"It's about what's the geographic scope of the armed conflict," says University of Texas Law professor Bobby Chesney, who worked on the Obama administration's detention policy task force. "The question is: Are we at war with al-Qaida and its associated forces wherever they may be found, or are we just at war with them in Afghanistan and perhaps Pakistan?"
This is a question about more than Bagram; it's about foreign detainees that the U.S. is holding anywhere in the world. The Obama administration has yet to announce its answer.