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U.S./Afghanistan: Detainees Still In Legal Limbo Despite New Law

U.S. guards and a prisoner at the U.S. facility at Guantanamo Bay, Cuba (file photo) (epa) PRAGUE, October 3, 2006 (RFE/RL) -- U.S. President George W. Bush is expected to sign legislation soon allowing the U.S. military to detain suspected terrorists indefinitely without filing formal charges.

The bill, passed by Congress in late September, also allows for trial before a military commission instead of a civilian court in instances where U.S. officials choose to bring charges against an "enemy combatant."

Under the U.S. Constitution, the government is required in civilian courts to explain why a suspected criminal is being held -- and to give them access to lawyers. People accused of crimes also have the right to a speedy and public jury trial.

But the legislation approved last week says non-U.S. citizens held by the U.S. military as "enemy combatants" do not have those rights.

The plan originated in the White House and is known as the "Hamdan" legislation after a Yemeni national and former driver for Osama bin Laden who has challenged his treatment.

Bush signaled his support for the bill on September 28 by praising its passage in Congress.

"I want to congratulate the House [of Representatives] for passing a very vital piece of legislation that will give us the tools necessary to protect the American people. And that is the Hamdan legislation," Bush said. "That is the legislation that will give us the capacity to be able to interrogate high value detainees and, at the same, give us the capacity to try people in our military tribunals."

UN, International Critics

Critics include the UN special rapporteur on torture, as well as international human rights groups. They claim the legislation is a step backward that legalizes cruel and degrading punishment by the U.S. military.

Sam Zia Zarifi, an expert on Afghanistan who works for the New York-based nongovernmental group Human Rights Watch, cites the forms of treatment that were taking place at Abu Ghraib prison following the U.S.-led invasion of Iraq.

"This is legislation that allows nearly all of the abusive acts that shocked everyone from Abu Ghraib to continue."

"This is legislation that allows nearly all of the abusive acts that shocked everyone from Abu Ghraib to continue. None of those pictures that we saw [from Abu Ghraib] really showed anything that would be considered 'torture' under this act. They would all be considered 'stress positions' or 'use of fear' -- the kind of stuff that this act actually does allow. So it's a big step back in terms of protecting human rights because the prohibition under international law is not just against torture, but also against cruel and degrading punishment. And this act essentially [allows cruel and degrading punishment because it] writes that into U.S. law now."

The legislation could impact hundreds of suspected terrorists being held without charge at U.S. military facilities in Afghanistan.

Afghan Prisoners

Zarifi has done extensive research into the way the U.S. military treats detainees at its facilities in Afghanistan. He says the legislation affects Afghan detainees held by U.S. forces in Afghanistan on two levels -- whether at Bagram Air Field north of Kabul or at secret U.S. detention centers elsewhere in Afghanistan.

"First, it allows abusive practices -- stress positions, sleep deprivation -- the kind of thing that [Human Rights Watch] had chronicled at Bagram long before the Abu Ghraib scandal broke [in 2004] and was going on at Bagram," Zarifi says. "In fact, it seems like those kind of practices have diminished at Bagram itself. But we are [still] very concerned about what's going on at other U.S. detention facilities, including the forward operating bases."

Afghan prisoners at Bagram (epa file photo)

Zarifi also notes that detainees at Bagram and other U.S. military installations will lose their right to file a petition of habeas corpus. That means they can be detained for as long as U.S. officials deem necessary without being formally charged with a crime -- and they are unable to legally challenge their detention.

"Bagram has at least another facility where the CIA was holding detainees from other countries. People were flown from all over the world to Bagram," Zarifi says. "There was a dark prison, a secret prison, in Bagram also which was, as its name implies -- a complete dungeon essentially where detainees were subjected to extreme cold, extremely loud music being played at them night and day, real tough stress positions. Our understanding is that that facility has been closed for a year and a half now -- also again, probably, because of public pressure and because of pressure from the Afghan government."

Zarifi says he thinks the senior U.S. military officials also have achieved changes in the way U.S. troops and civilian interrogators treat detainees at Bagram in the past two years. He says those changes were necessary because news reports about the beating deaths of some detainees were generating resentment against U.S. forces in Afghanistan.

But he said the situation for detainees elsewhere in Afghanistan remains unclear.

"Human Rights Watch's chief concern right now is about what is going on, not in Bagram, but in other facilities that the U.S. runs -- what are called 'forward operating bases.' These are military facilities that the U.S. has been running -- some of them for the last five years. But the Red Cross doesn't have any access to them. Afghan authorities don't have any access to them. It's in those places where we fear Afghans are still subject to abuse and mistreatment."

Handing Over Suspects?

Afghan Interior Ministry spokesman Zmary Bashari told RFE/RL that despite promises by U.S. officials in the past year that Afghan detainees at Bagram would be turned over to authorities in Kabul, the ministry is not aware of any progress on that issue.

"Now we don't have enough information about that to offer it to you," Bashari says. "But next time, we will inform ourselves and let you know what is going on."

But Rahul Bedi, a journalist who covers Afghanistan, Pakistan, and India for "Jane's Defense Weekly," says he thinks U.S. military officials are reluctant to turn over suspected terrorists to be dealt with by Afghanistan's fledgling legal system.

"The problem in Afghanistan is that once they are turned over to the Afghan authorities, there is a problem of trial and the legal system in Afghanistan -- which by all accounts, is very, very basic and embryonic, virtually to the point of nonexistence," Bedi says. "So I think we can safely assume that of the several hundred arrested, nobody is likely to be charged [by the Afghan courts] or imprisoned or even executed, should the death penalty by exercised. So really, it's an exercise in futility."

Bedi also says he thinks many detainees in Afghanistan have been wrongly accused of being Taliban or Al-Qaeda fighters by local rivals who have used the U.S. military to settle private disputes that have nothing to do with counterterrorism.

"At the end of the day, the yardstick of measurement by the West is the number of Taliban or the number of Al-Qaeda people that they have supposedly captured. And they total up to several hundred," Bedi says. "But nobody really subtracts the numbers that have been released, which leaves very, very few who are actually Taliban or Al-Qaeda fighters. A lot of score settling is taking place [with Afghans wrongly accusing innocent people of being Taliban or Al-Qaeda]. A lot of false arrests are being made."

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