Bobby drew attention to yesterday’s Washington Post article about the Afghan Government’s release of hundreds of detainees the U.S. military had transferred to Afghan control at the detention facility at Bagram. Bobby rightly commented that the Afghans’ reluctance to hold detainees under the laws of war is not new; despite being in the middle of an armed conflict, they have resisted law-of-war detention for many years.
What is worth noting again is just how large the Bagram detention facility grew under the Obama Administration. When the Administration came into office, there were roughly 600 detainees at Bagram (and roughly 240 at Guantanamo). By the fall of 2012, when the initial agreement to transfer control of Bagram to the Afghan Government was reached, the number of detainees had quintupled, to more than 3000, including approximately 50 non-Afghan detainees. The Administration has held all of these detainees under the laws of war, but not as POWs under the Third Geneva Convention or Protected Persons under the Fourth Convention; the Administration instead has called them “unprivileged enemy belligerents” (to be distinguished from the Bush Administration’s much maligned label of “unlawful enemy combatants”). Moreover, unlike the detainees at Guantanamo, none of the detainees at Bagram have enjoyed the right of habeas corpus to challenge their detention in US courts. Despite the opprobrium they heaped on the Bush Administration, European governments and the press have been strangely silent about the Bagram detention facility; Human Rights First did release a report in 2011 entitled “Detained and Denied in Afghanistan,” but it received little attention.
In his NDU speech earlier this year, President Obama asserted that Guantanamo is a “facility that should never have been opened.” When his speechwriters wrote these lines, however, they may not have realized that President Obama has presided over the creation of his own Guantanamo in Afghanistan that was more than ten times the size of the Guantanamo he inherited and where detainees have had substantially fewer legal rights to challenge their detention.