More Than Guantanamo

Putting aside the words of torture-loving sadists like John Yoo for a moment, there are a couple flaws in President Obama's executive order, particularly as it relates to Guantanamo. As Rachel Maddow picked up on almost immediately, nowhere in the order was there any call to close Bagram Air Force Base in Afghanistan, or to deal with the prisoners there. The US military is holding over twice as many prisoners at Bagram than they currently are at Guantanamo, with practically no access to lawyers, worse conditions, etc. No journalists have been allowed inside, and no human rights group. It needs a reckoning, too.

President Obama must now decide whether and how to continue holding the men at Bagram, most of them suspected of being Taliban fighters. Under the laws of war, they are being held indefinitely and without charge. He must also determine whether to go forward with the construction of a $60 million prison complex at Bagram that, while offering better conditions for the detainees, would also signal a longer-term commitment to the American detention mission.

Mr. Obama tried last week to buy some time in addressing the challenges Bagram poses even as he ordered Guantánamo closed. By a separate executive order, Mr. Obama directed a task force led by the attorney general and the defense secretary to study the government’s overall policy on detainees and to report to him in six months.

But human rights advocates and former government officials say that several factors — including expanding combat operations against the Taliban, the scheduled opening of the new prison at Bagram in the fall and a recent federal court order — will probably force the administration to deal with the vexing choices much sooner.

The answer is very simple - to apply the laws of war and the Geneva conventions, and to try or release anyone at Bagram not connected to the ongoing war in Afghanistan. The detainees there are at least more plausibly "on the battlefield" and considered POWs, and yet, on wonders if the population has increased at Bagram because Gitmo is the more high-profile camp. Barely anyone at Guantanamo had a connection to terror, and we should not assume that Bagram is any different. In fact, there is some evidence to that effect.

An untold portion of the 600 detainees at Bagram Airfield in Afghanistan were captured outside the country while engaged in peaceful activities, lawyers and court documents say, and imprisoned alongside Afghan warriors. The U.S. government has argued that battlefield rules put the prisoners beyond the reach of civilian justice, even though they weren't captured in the Afghan war zone.

A lawsuit by four Bagram detainees has revealed striking similarities between the prison in Afghanistan and the Guantanamo Bay facility. To determine the full measure of that resemblance, District Court Judge John D. Bates instructed government lawyers to turn over the total number of captives nabbed abroad. That crucial number was redacted from public court documents (PDF) filed in the case. Recently, Bates has turned to the Obama administration, which recently put the Gitmo military commissions on hold, for guidance.

The Bush administration argued that the whole world is a battlefield after Sept. 11 and chose to treat counterterrorism efforts as military actions, rather than law enforcement. Those strategies led to indefinite detentions of terrorism suspects at Guantanamo Bay without due process. While battlefield military detentions are traditionally beyond the scope of civilian court review, the government has sought to extend the global battlefield construct (PDF) to detainees who were brought to Bagram from peaceful cities.

Obama and his national security team need to sort this out. The consequences of this finding becoming more widespread, the revelation that we're using Bagram as an off-the-books Guantanamo, would be grave for public diplomacy and our relationship with the world. They have to figure out who's at Bagram and deal with them in accordance with Constitutional principles and international conventions.

RELATED: Good on Bob Gates for pushing back on the nonsense about released Gitmo detainees returning to kill us all in our beds. Now, we need a similar kind of candor about Bagram.