Afghanistan's Policharki prison.

Afghanistan's Policharki prison.

Afghanistan's Policharki prison.

The law, lawyers, and the court.
Aug. 16 2007 12:16 PM

Custody Dispute

Why is the U.S. stashing detainees at Policharki prison in Afghanistan?

Freed terror detainees. Click image to expand.
Afghan prisoners released from Bagram

First Guantanamo, then Abu Ghraib, and now add Afghanistan's Policharki prison to the list of hellish U.S.-run prisons around the world. The United States has moved to Policharki Afghan detainees who have begun to challenge their confinement and treatment in American courts. The government claims that the prison is under the sovereign authority of Afghanistan and so lies outside U.S command—and beyond the reach of our courts. Yet these prisoners are being held in a special "national defense" wing built by our government and staffed by American jailers and interrogators. The Policharki transfers are the latest example of the Bush administration's long-running effort to evade judicial review of the thousands of detentions that have resulted from the war on terror.

Built in the 1970s, Policharki was a notorious torture center during the following decade of Soviet domination. Directed by their Soviet masters, Afghan interrogators administered a protocol of psychological and physical torture: sleep deprivation, electric shocks, cigarette burns, threatened sexual violation. Nearly 17,000 Afghans were murdered in night executions at the prison. Now the United States is using Policharki as a long-term detention center for detainees previously held at Bagram, a U.S. Air Force base in Afghanistan. In recent months, more than 80 prisoners at Bagram have been sent to Policharki.

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I have a professional interest in these detainees: I represent Ruzatullah (like many Afghans, he has only one name), an Afghan farmer who was taken from his home more than two and a half years ago by U.S. troops, according to his brother, who was also captured but later released. Ruzatullah was brought to Bagram, where he has been held without charges, without a hearing, and without access to counsel.

The Air Force base has been the holding site for thousands of detainees, including many of those later sent to Guantanamo Bay. Approximately 500 remain at Bagram, a place of greater violence and abuse than Guantanamo. In 2002, two prisoners were tortured to death by American interrogators at the prison. As Tim Golden reported in a New York Times series in 2005 (article purchase required), conditions remain primitive, and processes for determining who is being held without basis are virtually nonexistent. The U.S. government has conceded that it does not have the resources to determine in a timely way whether individual detainees are being properly held. And Bagram lacks even the unsatisfactory Combatant Status Review Tribunals used at Guantanamo. Determinations of combatant status are not made through any evidentiary hearing, but rather by the commanding officer at Bagram, who has discretion whether to gather evidence, hear witnesses, or allow the detainee to present his story.

Given these conditions, the U.S. authorities are concerned that the Supreme Court's decisions granting detainees some rights to challenge their confinement at Guantanamo could spell legal trouble at Bagram. We filed a petition for habeas corpus on Ruzatullah's behalf, asking for a judicial hearing to determine whether there was any basis for his continued detention at Bagram. Rather than litigate that issue, the government moved him to Policharki in early June. Government lawyers then notified the court that the United States had "relinquished all legal and physical custody" of Ruzatullah to the Afghan government. Move on, court—nothing to see here.

But the government failed to tell the court that Ruzatullah was taken directly to Policharki's new "national defense" wing. Earlier this month, Ruzatullah's family visited him there. American trainers operate the prison from a central command center out of sight of the prisoners. Our military acknowledges that it oversees operations and controls all access and security. Ruzatullah's young son tried to comfort his father, but according to other family members, Ruzatullah was angry and nonresponsive, showing the signs of long-term confinement and torture. He told his brother that he has lost hope that anyone will listen to his pleas.

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And indeed, no Afghan court appears to have jurisdiction over Policharki's national defense wing. Nor have basic rights in Afghan law been afforded to the detainees there. Like our Constitution, the Afghan Constitution provides a right to counsel from the time of arrest, yet to date no Afghan detainee at Policharki has been permitted to see a lawyer, despite requests by family members and Afghan human rights groups.

Recently, in the case Abu Ali v. Ashcroft, a Republican-appointed district judge rejected the government's position that the court lacked jurisdiction over a prisoner held in a Saudi prison who was incarcerated at the behest and supervision of the United States. Judge John D. Bates wrote that he could not find any basis for not hearing the detainee's petition "merely because the executive is allegedly working through the intermediary of a foreign ally."

It's a promising ruling. And at Guantanamo, the government's efforts to evade the jurisdiction of American courts suffered setbacks in the last three years, in the cases Rasul and Hamdan. In the next year, the Supreme Court may definitively decide the scope of constitutional protection for foreign detainees in the upcoming cases Boumediene and Al-Odah. What is not clear from the relatively cautious rulings thus far is whether the court will base its Guantanamo rulings on the special status of the base, given its virtual American sovereignty, or instead affirm that the Constitution imposes absolute limits on U.S. officials to violate the fundamental rights of those whom they detain, wherever they may do so. The litigation over treatment at Bagram directly poses this question. And so rather than risk an adverse ruling, the administration is pretending to subcontract detention to a weak and compliant Kabul—while in truth American authorities run the show. The courts should not allow this ruse.

Eric Lewis is a Washington, D.C., lawyer who represents detainees both at Guantanamo and in Afghanistan.