The U.S. is holding about 3,000 detainees at Bagram, many of whom have not been charged with a crime, have seen no evidence against them, and do not have the right to be represented by a lawyer, in addition to being exposed to harsh conditions.

The head of the Afghan investigation said U.S. officials told him many of them were captured based on intelligence that can’t be used in Afghan courts.

Detainees interviewed by the investigators spoke of being held in freezing cold cells, forced nudity, physical abuse, and extended isolation. Daphne Eviatar, an attorney for Human Rights First who investigated Bagram detainees months ago said ”It’s worse than Guantanamo, because there are fewer rights.”

U.S. officials have described the Bagram detainees as too difficult to try, and too dangerous to release. But Afghan investigator Sayed Noorullah said the prison must be transferred to Afghan control “as soon as possible,” adding that “If there is no evidence … they have the right to be freed.”

Karzai’s statement said US control of the prison and open-ended detention of Afghan citizens violated the Afghan Constitution as well as international covenants. He also cited reports of human rights abuse at the facility.

Bagram has become a growing human rights concern, both because of the treatment of the detainees and because it has become a legal black hole for detainees, with the US bringing captives into the country then claiming that they don’t have the same trivial legal protections as even those in Guantanamo since Bagram is in a foreign country.

NATO dismissed Karzai’s statement alleging abuse, saying any such claims should be addressed to them directly. The US did not indicate if they intend to comply with the demand, saying only that they are “committed to working with the Afghan government to complete a joint plan for transition of detention operations.”

Transferring Bagram and giving Karzai’s government the power to release detainees could conceivably give them some power, but the large number of detainees at what has become a de facto black-site is likely to make a quick transfer uncomfortable for the Obama Administration.

The panel found that Bagram is subject to “the vagaries of war” and one judge claimed that because “there is no indication of any intent to occupy the base with permanence,” it isn’t under the court’s jurisdiction.

A previous case had determined that the US could detain Afghan citizens essentially forever at Bagram without providing any explanation for why or charging him with any crimes, but today’s ruling expands that lack of legal recourse to all detainees, regardless of nationality.

The Obama Administration had previously argued that giving any detainees there any legal rights at all would be a threat to national security, and a threat to the nearly nine year long war in Afghanistan. The argument is essentially the same as that of the Bush Administration.

But the Obama Administration is bound and determined to eventually fulfill their campaign promise to close Guantanamo’s detention facility, even if they have to betray the reasons behind its closure entirely and simply transplant the extralegal detention center somewhere else. Enter Bagram Air Base.

Bagram, the former base of operations for the Soviet occupation and currently among the bases of operations for the NATO occupation, has already been well established over the past eight years as a legal black hole for detainees.

The Bush Administration and later the Obama Administration have argued that the detainees at Bagram have even fewer rights than those held at Guantanamo Bay, and there are already some US court decisions supporting the position that the government can hold detainees at Bagram forever without explanation, without charges, and without any legal recourse.

It isn’t hard to imagine why the Obama Administration, facing political fallout from the notion that relocating the Gitmo detainees and charging them with actual crimes is an outrage, is examining the prospect of moving the captives from an island prison off the coast of Florida to a prison in a landlocked nation on the other side of the planet. Not everyone is happy though.

In addition to the usual opponents of this sort of policy, Gen. McChrystal, the commander of US forces in Afghanistan, is reportedly concerned about administration plans to use Bagram to house detainees that have nothing to do with the Afghan War. It seems that it will make his job more difficult, moreover, when the time comes to explain to Afghans how the pretense of a temporary occupation can be maintained when the nation is being used to house detainees who the administration has also clearly said will be held for the rest of their lives.

Judge John D. Bates of the U.S. District Court for the District of Columbia dismissed the petition Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.

In an earlier ruling, in April 2009, Judge Bates said that three other Bagram prisoners — two Yemenis and one Tunisian citizen – did have the right to petition U.S. courts for their release.

But he also ruled that because Wazir was a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.

Wazir is a citizen of Afghanistan who was captured in Pakistan in 2002, and held since then in extrajudicial detention at Bagram. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.

According to Lal Gul, chairman of the Afghan Human Rights Organization, Wazir "is not a commander, not a member of the Taliban or al-Qaeda. He is a businessman."

Tina Monshipour Foster, executive director of the International Justice Network (IJNetwork), the organization representing Bagram detainees, told IPS, "The court’s decision to deny Mr. Wazir the right to challenge his detention was based solely on the fact that he is a citizen of Afghanistan. It is time for President Obama to take action and begin to reverse the flawed policies of the previous Bush White House."

She added, "If the Obama administration genuinely wants to restore the moral authority of the United States, commitment to ‘change’ must extend to Bagram and all the detainees held there. Only after we cease to deny Afghan citizens the most basic rights to due process can legitimate talk of justice and cooperation take place."

IJNetwork litigation and advocacy director Barbara J. Olshansky said that "President Obama must do more than issue platitudes about closing Guantánamo, he must establish a fair and effective system of justice that applies to all individuals who we take into our custody and control, no matter where in the world we decide to locate the prison."

In response to the court’s decision, Olshansky added, "innocent civilians should not have to languish in prison solely because they are citizens of Afghanistan — the present administration can, and must, provide fundamental rights to everyone it chooses to detain, regardless of race, ethnicity, or religion."

The IJNetwork provides legal assistance and expertise to victims of human rights abuses through a global network of legal professionals, non-governmental organizations and community-based human rights advocates.

While millions know that the Bush administration has left Obama with the job of closing the U.S. prison at Guantánamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.

That dilemma is what to do with what has become known as "the other Gitmo" – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.

The "other Gitmo" was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantánamo.

In 2005, following well-documented accounts of detainee deaths, torture and "disappeared" prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government.

But due to a series of legal, bureaucratic and administrative missteps, the prison is still under U.S. military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.

The ICRC report is said to cite massive overcrowding, "harsh" conditions, lack of clarity about the legal basis for detention, prisoners held "incommunicado" in "a previously undisclosed warren of isolation cells" and "sometimes subjected to cruel treatment in violation of the Geneva Conventions". Some prisoners have been held without charges or lawyers for more than five years.

The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.

Jonathan Hafetz, staff attorney with the American Civil Liberties Union National Security Project, told IPS, "When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake."

"Torture and abuse at Bagram is further evidence that prisoner abuse in U.S. custody was systemic, not aberrational, and originated at the highest levels of government. We must learn the truth about what went wrong, hold the proper people accountable and make sure these failed policies are not continued or repeated," he said.

In April, the ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the detention and treatment of prisoners held at Bagram, including the number of people currently detained, their names, citizenship, place of capture and length of detention.

The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants".

"The U.S. government’s detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The American people have a right to know what’s happening at Bagram and whether prisoners have been tortured there."

Thousands of individuals from all over the world have been taken to the airfield prison, and it is being expanded with a new prison to hold more than 11,000.

(Inter Press Service)