Obama’s International Shell Game

The world breathed a collective sigh of relief when-just days into his administration-President Obama issued a series of executive orders to phase out Guantanamo, end torture, and shutter the Bush-era web of secret prisons.

But recent revelations indicate that the Administration's actions have failed to match its lofty rhetoric. According to The New York Times and The Washington Post, the Obama administration continues to use the practice of secret detention at facilities such as the recently identified "black jail" located at Bagram Airfield in Afghanistan.

It is a shocking revelation, not least because of Obama's firm stance against virtually identical practices that occurred under the Bush administration. On the same day that the president called for a winding down of detention operations in Guantanamo Bay nearly a year ago, he ordered the immediate closure of the network of CIA-run "black sites". These secret prisons, where detainees were often held incommunicado before being transferred to other detention facilities or released, saw some of the worst human rights abuses in the "War on Terror." And yet the Obama administration has permitted their apparent reincarnation in Afghanistan. 

Because the "black jails" in Afghanistan are managed by military Special Operations forces instead of the CIA, their existence does not technically violate Obama's executive order. Still, the maintenance of such facilities almost certainly runs afoul of U.S. commitments under human rights treaties and the Geneva Conventions. And the message to the world is clear: the Obama administration is willing to treat detention as an international shell game.

According to news reports, prisoners at the sites are held in small, windowless, concrete cells and deprived of human contact, aside from twice-daily interrogations, for weeks or months. This policy of isolation includes the denial of access to the International Committee of the Red Cross, which plays a monitoring role at other detention facilities, and contravenes the spirit of U.S. obligations under the Geneva Conventions and under President Obama's Order Ensuring Lawful Interrogations. Moreover, released detainees reported tactics designed to create mental stress, such as sleep deprivation and disorientation from the time of day, and physical abuse that potentially violates the Detainee Treatment Act of 2005, the Convention Against Torture, and the Geneva Conventions.

The legal black hole created by these black sites in Afghanistan is indicative of a larger approach to detention riddled with shortcomings and inconsistencies. Even as the Obama administration strives to close the detention facility at Guantanamo Bay, it continues to operate a similar facility at Bagram Airfield in Afghanistan - only at Bagram the legal protections for detainees have been even fewer than those the Supreme Court roundly rejected in Boumediene. Bagram's persistence raises the appearance that the Administration is willing to take a symbolic win for human rights by closing Guantanamo, only to shift the locus of its detention policies-which remain essentially unchanged-to Afghanistan, thousands of miles from the scrutiny of the American public.

The Obama administration has provided little indication that it intends to change course anytime soon. In an April ruling a district court judge afforded limited access to U.S. courts to non-Afghan detainees who were kidnapped by U.S. forces outside of Afghanistan and shipped to Bagram. The Obama administration has appealed the decision and continues to repeat the position first advanced by the Bush administration. Back in Afghanistan, U.S. officials recently unveiled a new $60 million prison, which will permit the U.S. to further expand their detention operations.

As disturbing as these policies are as a matter of human rights, they have profoundly negative consequences for our military's efforts in Afghanistan. In General Stanley A. McChrystal's recent assessment of the conflict, he highlighted the importance of gaining the support of the Afghan people. And as McChyrstal and other military leadership recognize, the black sites and Bagram serve as an "ominous symbol" of abuse for Afghans, engendering mistrust and resentment. This situation is counterproductive to our efforts to build U.S. relations with Afghans and also serves as a recruiting tool for the Taliban and Al-Qaeda. Without a change in our detention practices, the damage to the United States' reputation may very well cripple any effort to obtain the support of the Afghan people and succeed in this war effort - a shameful miscalculation that the United States can ill-afford as thirty thousand more of our soldiers risk their lives to bring peace to that country.