Afghanistan Decreased Police Role

THE
PARADIGM AFFIRMATIVES
AFGHANISTAN: DECREASED POLICE ROLE
PARADIGM
Research
2010-2011
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The 2010-2011 Paradigm Affirmatives Two - Afghanistan: Decreased Police Role by David Cram Helwich
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Paradigm Affirmatives 2010-2011

INDEX
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 FIRST AFFIRMATIVE CONSTRUCTIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 EXTENSIONS STATUS QUO EXTENSIONS STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (BAGRAM) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- AFGHANISTAN (FIELD DETENTION CENTERS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- AFGHANISTAN (GITMO REPLACEMENT) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTIONS NOW -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- BAGRAM/AFGHANISTAN REPLACING GITMO . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- OBAMA SUPPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- SECRET FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE" . . . . . . . . INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BOUMEDIENE PRECEDENT" . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- DUE PROCESS/INDEFINITE DETENTION . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- GENEVA/INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- PRISON CONDITIONS/ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ENEMY/UNLAWFUL COMBATANT DESIGNATION . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "AFGHAN COURTS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CIA PRISON BAN SOLVES" . . . . . . . . . . . . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS" . . . . . . . . . . . . . RIGHTS VIOLATIONS NOW -- ANSWERS TO: "OBAMA FIXED IT" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STABILITY ADVANTAGE EXTENSIONS STABILITY ADV EXT: DETENTION SPURS INSTABILITY -- INSURGENCY/AFGHAN SOVEREIGNTY . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS INSTABILITY -- PUBLIC RESENTMENT/SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . RAIDS SPUR INSTABILITY -- RESENTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- PUBLIC SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- RECRUITMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION SPURS TERRORISM -- TERROR COOP/INTELLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTERNATIONAL LAW ADVANTAGE EXTENSIONS INT'L LAW ADV EXT: DETENTION UNDERMINES GENEVA CONVENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MODELING INTERNAL LINKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- IMPACT EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ONGOING NOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ANSWERS TO: "GOOD FOR INTEL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE -- ANSWERS TO: "OBAMA BANNED" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ADD-ON ADVANTAGE SOFT POWER ADD-ON: 2AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOFT POWER ADD-ON: EXTENSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATE OF EXCEPTION ADD-ON: 2AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOLVENCY EXTENSIONS SOLVENCY MECHANISM: CONGRESSIONAL ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURT ACCESS (GENERAL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PRISONER RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOLVENCY EXT: AFGHANISTAN STABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . GITMO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INT'L LAW/HUMAN RIGHTS CREDIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOFT POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TERRORISM/RESENTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ANSWERS TO: "PREVENTIVE DETENTION JUSTIFIED" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14 16 17 19 20 21 23 26 28 30 32 33 34 36 37 38 39 41
42 43 45 46 47 48 50
51 52 54 55 56 58 60 61 62 63
65 66 67 68 69 70 71 72 73 74 75

EXTENSIONS cont'd
COURTS MODULE COURTS SOLVENCY MODULE: 1AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS ADVANTAGE MODULE: 1AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS ADV: EXECUTIVE ABUSE/TYRANNY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE WARMAKING/LEADERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLENARY POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COURTS SOLVE: DEFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXECUTIVE ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . JUDICIAL INDEPENDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RULING SNOWBALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TORTURE/DETAINEE ABUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ANSWERS TO: "CIVILIANS MAKE POOR DECISIONS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "JUDICIAL INCOMPETENCE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "LEAKS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "SECRECY/SECURITY CONCERNS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "UNDERMINE EXECUTIVE" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OFFCASE ANSWERS DETENTION CASES ARE TOPICAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76 78 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94

INTRODUCTION
Most members of the American electorate believe that the issue of indefinite detention, a major political and legal controversy during the Bush era, was put to rest by the election of Barack Obama, who pledged to shut down the notorious Guantanamo Bay detention center and "return the rule of law" to U.S. military and police detention facilities overseas. However, the Obama administration has been forced to capitulate on its pledge to shut down the Guantanamo facility within its first year of office because of strong congressional opposition. Perhaps even more surprisingly, the Obama administration decided in March 2009 to continue the Bush era's contestation of a legal case where the government is arguing that the Supreme Court's recent Guantanamo-related rulings about the illegality of indefinite detention and military tribunals do not apply to U.S. facilities in Afghanistan. The Obama administration has appealed a ruling by federal district court judge John D. Bates, who ruled that the Gitmo precedents do apply to U.S. military prisons in Afghanistan, and the case is currently before a federal court of appeals. The case will likely reach the U.S. Supreme Court, but is unlikely to do so for several years as it works its way through the legal system, and it is unclear how the Supreme Court will rule in the case. In the interim, many commentators claim that the Obama administration plans on using U.S. military prisons in Afghanistan, particularly that at Bagram, as replacements for the discredited Guantanamo facility. Consequently, the Obama administration is simply shifting the problems that we currently have with detentions in Guantanamo to Afghanistan, where prisoners are afforded no legal rights and are allegedly subjected to very harsh conditions. Other analysts claim that the United States is still running secret prisons in Afghanistan, so called "black jails" where it hides detainees from international legal observers. These prisons run contrary to the spirit of an Obama order that prohibited secret prison facilities run by the Central Intelligence Agency (CIA), but do not violate the order because they are run by special forces units of the American military. Regardless of how the legal drama plays out, the United States is currently mired in a situation compromises the human rights of detainees, tarnishes America's reputation, and compromises the success of the U.S. mission in Afghanistan. The case included in this book argues that we should rectify this problem by eliminating the abusive U.S. military and police detention centers in Afghanistan. The plan has the United States federal government eliminate all detention centers in Afghanistan that do not comply with constitutional and international legal standards of judicial review of the legitimacy of the alleged prisoner's detention. The inherency evidence indicates that applying this standard will result in the elimination of all long-term U.S. military detention centers in Afghanistan, including that at Bagram and the "secret" facilities, since none of them are currently subject to judicial review. The solvency evidence argues that eliminating these "legal blackholes" is both necessary to restore American credibility and to ensure that the U.S. military no longer abuses current and potential detainees. The plan will have the effect of forcing the government to prove that it has legitimate reason to hold any suspect, either by affording that person Prisoner of War status or by proving that they have engaged in criminal activity, and are thus subject to prosecution. Therefore, there will no longer be a need for long-term detention centers like those currently run by the United States in Afghanistan. The first advantage claims that the U.S. military's arrest and detention policies in Afghanistan generate enormous resentment among the Afghan people, who view the raids and detention facilities as part of a terror campaign conducted against them by the American military. This resentment fuels the insurgency, and undermines vital cooperation between the U.S. military and the Afghan public, and there is very good evidence that claims it will be impossible for the U.S. to stabilize Afghanistan unless it closes down the detention centers that operate in violation of international legal standards. An unstable Afghanistan is dangerous because the conflict risks spreading to neighboring states, many of whom either possess nuclear weapons or have allies who do so. U.S. detention centers also facilitate terrorist recruiting, exacerbating the threat posed by Al Qaeda and other terrorist organizations, with predictable consequences. The second advantage argues that the U.S.'s detention facilities in Afghanistan, particularly Bagram and the "secret" facilities, are in violation of international law, and thus should be shut down. Current U.S. policy, which defies international standards for the treatment of prisoners during war, both undermines the credibility of the United States and erodes confidence in the international legal framework, since the most powerful country in the world acts as if it can ignore it. The plan is important in restoring international confidence in both the United States and international law because it brings the U.S. back into compliance with global legal norms regarding the military's treatment of prisoners. A strong international legal framework, the Copelon evidence argues, is necessary to protect humanity against a number of collective threats. The advantage also argues that the current prison system and lack of accountability facilitates an environment that encourages the torture of detainees, and that we need to eliminate the prisons to remove the strain of torture from the hands of American policymakers. In addition to the "vanilla" United States federal government version of the case, we have also included a second version that relies on action by the United States Supreme Court. The primary distinction between the two versions is that the first has the branches of the federal government act in union to eliminate military prisons in Afghanistan, while the second has the Supreme Court rule that the U.S.'s prisons in Afghanistan violate domestic and international law, and order that they be shut down. There are a number of cards in both the solvency and advantage observation for the Supreme Court version of case that argue that independent court action is necessary to both provide legal precedents that check executive abuses in wartime (which lead to wanton presidential warmaking) and have the legal precedential effect of prohibiting all extraterritorial detention facilities that do not comply with constitutional and international law. This case thus has the benefit of having a strong advantage that is tied to the agent and the bonus of solving for potential prisoner shift arguments/the problem of indefinite detention by the United States around the world. This is true because the court decision rendered by the plan declares facilities that indefinitely detain persons in Afghanistan illegal on constitutional and international legal grounds, and other, inferior American courts (and executive agents) will interpret that ruling as declaring all extraterritorial indefinite detention facilities illegal. There is pretty good evidence on this question. Just remember that the plan is NOT extratopical, because it only issues a ruling in the case of Afghanistan's military prisons -- the enhanced solvency claim is a CONSEQUENCE of the plan, not a mandate.
There are also two add-on advantages that you can read with either "solvency" version of the affirmative. The first, a soft power add-on, argues that current detention policies are seen by the international community as a continuation by the Obama administration of the reviled policies of the Bush era, and that other countries are much less likely to cooperate with the United States as long as we flaunt international law -- detention policy in Afghanistan thus threatens our soft power, and the cooperation of other nations is necessary to address a number of transnational problems, such as international terrorism, the spread of infectious diseases, and the proliferation of weapons of mass destruction. You should fill in your favorite prolif, disease, and/or terrorism impact card to complete the add-on. The second add-on advances a more critical argument, claiming that the Obama administration's efforts to defend Bagram and other prisons in Afghanistan as outside the boundaries of the American polity are an example of what the philosopher Giorgio Agamben describes as the "state of exception." We need to challenge these states of exception, which allow the sovereign to defend the biological life of the polis through actions that threatens the polis' existence, to avoid our extinction. Although this affirmative case may seem to be a bit outside of people's expectations when they first look at the topic, there is a lot of evidence that provides for a very robust topicality defense. First, the acts of apprehending, interrogating, and detaining suspects are both military and police actions, and in the case of Afghanistan, are conducted by U.S. military personnel, either combat (regular military) forces or military police. The prisons are run by members of the U.S. military police, and the current tribunal system is conducted by members of the American armed forces. The interrogations and detentions occur on military bases. Thus, the detention, interrogation, and status reviews of prisoners are all functions of American military presence in Afghanistan. The plan removes the military's power to conduct these functions without judicial review, and thus constitutes a decrease in the military's presence -- the plan literally orders the elimination of military facilities that do not meet constitutional and international law standards, and the inherency evidence indicates that ALL of the detention facilities in Afghanistan will end up being shut down. The negative team may argue that the Obama administration could set up detention facilities that meet constitutional and international muster, but this would only be a consequence of the plan, and is not a mandate. Remember -- the plan shuts down military prisons that are located on U.S. military bases and are run by American military personnel. If you select this as your affirmative case, you should pay careful attention to the Bates case as it works its way through the legal system -- the appropriate federal Court of Appeals heard the Obama administration's appeal a few months ago, and they may issue a court ruling soon. Although the court ruling will likely have little effect on the substance of the affirmative case, since the losing party is certain to appeal the appeals court ruling to the U.S. Supreme Court, an appeals court ruling will generate a number of news articles about the aff, and potentially provide you with some uniqueness tricks on politics and court-related disadvantages. We are confident that the case will not be resolved before the end of the season, largely because of the long lag time between the Supreme Court's taking of a case, the oral argument, and the rendering of a decision.

FIRST AFFIRMATIVE CONSTRUCTIVE
OBSERVATION ONE: THE STATUS QUO A. THE OBAMA ADMINISTRATION IS SHIFTING PRISONERS FROM GUANTANAMO TO MILITARY PRISONS IN AFGHANISTAN -- AT BEST IT WILL TAKE YEARS TO RESOLVE THE LEGAL MESS Matthew Rothschild, "Moving Guantanamo to Bagram Could Evade Court Jurisdiction," THE PROGRESSIVE, 3-25-10, www.commondreams.org/view/2010/03/25-10, accessed 4-21-10. In President Obama's first week in office, he pledged to close down Guantanamo within a year. The year's been up for two months now, and Guantanamo still remains open. Making matters worse, it looks like the Obama Administration may simply move Guantanamo to Afghanistan. The Los Angeles Times is reporting that the "White House is considering whether to detain international terrorism suspects at [Bagram Air Base] in Afghanistan, an option that would lead to another prison with the same purpose as Guantanamo Bay." And that purpose is to hold suspects indefinitely, without ever granting them any due process rights. The Supreme Court has ruled that suspects held at Guantanamo have due process rights because Guantanamo is effectively U.S. property. But the Obama Administration, like the Bush Administration before it, says that this court decision does not apply to Bagram Air Base. Last September, Obama's Justice Department told a lower court that "when it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction." Until the Court resolves that question, Obama can ship detainees from Guantanamo -- or anywhere else in the world -- to Bagram Air Base and hold them there for years at a time. It's against international law, but that hasn't stopped a President before. So it looks like make Guantanamo may soon be Spanish for Bagram, and both will translate into human rights violations. B. THE CASE WILL TAKE YEARS TO GET TO THE SUPREME COURT IN THE STATUS QUO -- MEANWHILE, DETAINEES ARE DENIED FUNDAMENTAL RIGHTS AND ARE SUBJECTED TO INDEFINITE DETENTION Spencer Ackerman, "New Bagram Rules Seem a Lot Like Old GTMO Rules," WASHINGTON INDEPENDENT, 9-14-09, http://washingtonindependent.com/58971/new-bagram-rules-seem-a-lot-like-old-gtmo-rules, accessed 4-21-10. The Obama administration is putting a new plan in place at Afghanistan's Bagram air field detention facility to bring indefinite detentions there -- a practice viewed as a replication of the Guantanamo Bay detention facility's more noxious functions -- to an end. What does it include? Assigning U.S. military officials, who aren't lawyers, to represent detainees' interests in administrative hearings, according to The Washington Post. And what does that sound like? "They're setting up what amounts to a CSRT," said David Remes, the legal director of the non-profit Appeal for Justice law firm who represents 19 Guantanamo detainees. A CSRT is the acronym for a Combatant Status Review Tribunal, the old mechanism at Guantanamo to adjudicate not a detainee's guilt or innocence, but whether he constituted a threat to U.S. national security. Detainees were at the mercy of hearsay evidence and had the burden of proving that they weren't a threat and the government's case against them was erroneous. The Bush administration contended that CSRTs provided all the process rights to which Guantanamo detainees were entitled. But in 2008, the Supreme Court ruled in the landmark Boumediene case that detainees were entitled to habeas corpus protections. And so, Remes said, several years and several thousand miles later, here we are again. U.S District Judge John Bates, a Bush administration appointee, ruled this spring that non-Afghan detainees brought to Bagram have habeas rights, but Afghan detainees at the facility don't. Remes foresees a protracted fight. "We'll spend another four years going up to the Supreme Court on the question of Bagram [detainees'] habeas rights," he said. "It's another stall. And one I would have expected from the Bush administration but not the Obama administration."
FIRST AFFIRMATIVE CONSTRUCTIVE cont'd

C. THESE NEW MILITARY FACILITIES IN AFGHANISTAN HAVE REPLACED CIA FACILITIES AS AMERICA'S NEW "SECRET PRISON," AND THE ADMINISTRATION IS DOING EVERYTHING IT CAN TO KEEP OUT THE COURTS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. So is Bagram Obama's new secret prison? However, while this is a genuinely disturbing development, because it suggests that the Obama administration is essentially following President Bush's lead by unilaterally rewriting the Conventions, presumably to allow it to continue exploiting prisoners of war for their supposed intelligence value (even though the DoD explained, in its proposal, that "intelligence value, by itself, is not a basis for internment"), only one major media outlet -- the New Yorker -- has picked up on a disturbing disclosure in the Times' coverage of the story on Sunday. I reported this in an article on Monday, when I explained that there was something deeply suspicious about the officials' statement that: the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention. As I explained, this "seems to confirm, in one short sentence, that, although the CIA's secret prisons have been closed down, as ordered by President Obama, a shadowy 'rendition' project is still taking place, with an unknown number of prisoners being transferred to Bagram instead." In a blog post for the New Yorker, Amy Davidson also picked up on the statement, calling it a sentence "that doesn't make much sense," and then asked: So closing Guantanamo increases the need for a new Guantanamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantanamo because it's unfashionable -- like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida -- or because we actually don't like extrajudicial, indefinite detention? While I await further developments, I recall that, back in April, CIA director Leon Panetta explained that, although the CIA "no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites," the agency "retains the authority to detain individuals on a short-term transitory basis." Panetta added that, although no detentions had occurred since he became director, "We anticipate that we would quickly turn over any person in our custody to U.S. military authorities or to their country of jurisdiction, depending on the situation." Is this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that "the only logical conclusion" I could draw was that, "essentially, the Obama administration's only real problem with 'extraordinary rendition' is one of scale. The Bush administration's industrial-scale rendition policies have been banished, but the prospect of limited rendition -- to third countries rather than to the U.S. court system, as would surely be more acceptable -- is being kept as a possible option." Whether hidden transfers to third countries are taking place is unknown, but from my reading of the officials' comments to the Times, I infer that the CIA is now handing suspects over to the U.S. military, including those captured outside Afghanistan, and that this is the reason, above all, that the government is anxious to prevent the U.S. courts from having access to foreign prisoners in Bagram. Moreover, as with the Bush administration, the indications are that this process focuses solely on the gathering of "actionable intelligence" -- or with "decommissioning" suspects -and that those responsible for implementing it have, yet again, chosen to ignore the fact that terrorism is a crime, prosecutable in the U.S. courts, and not an act of war requiring secret prisons and extra-legal detention, however much it may be dressed up in review procedures that include only the following "[p]ossible recommendations" for what will happen to those prisoners who "meet the criteria for internment": "continued internment" in Bagram, transfer to the Afghan authorities for prosecution, transfer to the Afghan authorities "for participation in a reconciliation program," and, in the cases of "non Afghan and non-U.S. third-country national[s]," options "that may also include transfer to a third country for criminal prosecution, participation in a reconciliation program, or release." What, I wonder, are the options that were not included? PLAN: THE UNITED STATES FEDERAL GOVERNMENT SHOULD SHUT DOWN ALL U.S. MILITARY AND POLICE PRISON FACILITIES IN AFGHANISTAN THAT DO NOT AFFORD JUDICIAL REVIEW ACCESS TO DETAINEES. FUNDING AND ENFORCEMENT ARE GUARANTEED.

OBSERVATION TWO: SOLVENCY A. DETAINEES SHOULD EITHER BE TRIED OR RELEASED Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.592. Let me conclude just by saying what concretely should the next President do, and along with him or her, what should the next Congress do. It's not going to be enough just to be a fresh face in the White House. There are going to have to be real changes in practice. Among those changes will be the need to close Guantanamo, to close its equivalents around the world: Bagram Air Base in Afghanistan, certainly the CIA secret detention facilities and the like. People there should be prosecuted or released. It's that simple. There should not be a preventive detention option. We should not just move Guantanamo onshore. The Army rules for interrogation should be extended to the CIA, initially by executive order and as quickly possible by legislation to make it harder for the next President to introduce another one of these exceptions. Habeas corpus should be immediately restored so that anyone detained by the U.S. has immediate access to the courts to challenge the legality of their detention. We should abolish altogether the military commissions. We do not need a justice system designed to introduce into evidence coerced testimony. People can be brought before the civilian courts. If they are captured in a battlefield, they can be brought before a regular court martial but none of these dumbed-down substandard military commissions. Apart from these concrete changes, we also need a real repudiation. It is not enough to simply stop doing it, I think there is a need to disown the theories that led to this, including I should say the concept of the global war against terrorism: The view that the Bush Administration or any administration on its own unilaterally can identify anybody any place in the world that is a combatant and therefore remove them from the criminal justice system and simply detain them as a combatant. B. ANYONE HELD BY THE U.S. SHOULD HAVE THE RIGHT TO CHALLENGE THEIR DETENTION Matthew Rothschild, "Moving Guantanamo to Bagram Could Evade Court Jurisdiction," THE PROGRESSIVE, 3-25-10, www.commondreams.org/view/2010/03/25-10, accessed 4-21-10. In a conventional war, where hostilities are formally declared and suspended and combatants are easily identified by the uniforms of their countries, federal judges have rightly been loath to interfere with the battlefield decisions of the executive. But the indefinite nature of the war against terrorism and the ease with which combatants can blend in with civilian populations means that the executive requires more flexibility in fighting the enemy and more checks and balances to ensure that innocents are not wrongly swept up. After all, it is also in the nation's interest to make sure that it detains only those who would do it harm. Even if the administration is correct to challenge federal court oversight -- and that is a big if, given that the Supreme Court has blessed judicial review of Guantanamo detentions -- it has no justification to deny Mr. Wazir and the other detainees the opportunity to meaningfully challenge his detention through internationally recognized legal avenues and through a more robust process than exists at Bagram. By refusing even these basic accommodations, the Bush administration once again is embracing a hard line that is neither warranted nor productive. And it is all but inviting the kind of judicial intervention that it has long sought to avoid and that could leave the next administration less able to adapt to the new war footing. This regrettable situation could and should be made moot by President-elect Barack Obama. Upon taking office, Mr. Obama should order that Mr. Wazir and the others at Bagram be afforded their rights under the Geneva Conventions and be given a meaningful chance to challenge their detentions. After six years, Mr. Wazir and the others are entitled to no less.

C. WE NEED TO ELIMINATE THE PRISONS AND THEIR TORTURE FACILITIES KHALEEJ TIMES, editorial, "Shut Bagram and Gitmo Now," 4-16-10, www.khaleejtimes.com/DisplayArticleNew.asp?xfile=data/editorial/2010/April/editorial_April32.xml&section=editorial&col=, accessed 4-16-10. When US President Barack Obama replaced George W Bush in the White House, the first executive order he signed was the closure of the Guantanamo Bay prison camp off Cuba. By signing that order vowing to shut the infamous gulag that has brought so much shame and disgrace to America, the new US leader had signalled a decisive break with the past. He also promised a "new way forward" with the Muslim world, promising to leave Iraq and Afghanistan as soon as possible and end torture and all the inhuman and abominable practices that the previous administration had sanctioned and routinely practised. He tried to restore the world's confidence in his great country and its lofty ideals by restoring the rule of law. Obama has completed nearly 15 months in office but Guantanamo Bay still remains open for reasons that are apparently beyond his control. We understand those compulsions. However, what defies comprehension is the continuing shame of torture and what Dick Cheney would call 'extraordinary interrogation methods' at places like the Bagram air base in Afghanistan. Human rights groups have long insisted that the infamous prison in Afghanistan is even worse than the one off Cuba hundreds of innocents living in awful conditions. Still the eyewitness accounts by nine prisoners released by the BBC are shocking, to say the least. According to the witnesses, Afghan prisoners are still being abused and tortured at the secret prison in Bagram whose presence both the US and Afghan authorities have long denied. More important, the witnesses claim these abuses have taken place since President Obama was elected. Bagram had once been the site of a controversial jail holding hundreds of inmates. The old prison was notorious for allegations of prisoner torture and abuse. But witnesses told the BBC in separate interviews that abuses are still continuing in a hidden facility called the Black hole by US soldiers. These are disturbing disclosures. They simply do not gel with the vision of a president who swears by justice, human rights and rule of law and has time and again expressed his revulsion over torture and abuse of prisoners. President Obama should ask the US commanders in Afghanistan and the Afghan government to immediately probe the matter and act against the guilty. More important, he must order an immediate and fair trial of all detainees both in Bagram and the Guantanamo Bay prisons or their release. Especially when the US military itself has admitted that about 80 per cent of those detained at Bagram are "probably not terrorists." As recent reports have revealed even Bush and Cheney knew that most of "the worst of the worst" (the words of former Defence Secretary Rumsfeld) held in Cuba were 'probably innocent'. Obama must not allow this rot to deepen on his watch. D. WE NEED TO BRING OUR FACILITIES INTO LINE WITH INTERNATIONAL LAW Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. Amnesty International urges the new administration to adopt a position on all US detentions in Afghanistan fully consistent with its international obligations,including in relation to conditions of confinement, interrogation techniques, and procedural rights.This must include meaningful access by detainees to a means of challenging the lawfulness of their detention in fair hearings before independent courts, with the assistance of independent legal counsel. Any detainee who is found to be unlawfully held must be immediately released. Amnesty International also reiterates its call upon the new administration to abandon any vestiges of the global war paradigm used by the previous administration to deny respect for human rights, including the perpetration of secret detention, torture, secret transfers of detainees, and arbitrary detention. E. CLOSING BAGRAM AND ENDING OUR DETENTION POLICY IS NECESSARY TO PROTECT RIGHTS AND HUMAN DIGNITY Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. Like the detention facility at Guantanamo, now the subject of a presidential deadline for closure, the history of detentions at the airbase in Bagram is one of denial of human rights and human dignity. It took more than six years for the detenus at Guantanamo to be recognised as having the right to habeas corpus. It is past the time for detenus in Bagram and other locations in Afghanistan to have the basic protection provided by independent judicial review. With the new U.S. administration committed to sending more troops to Afghanistan, it is likely that U.S. detentions there will continue and may even rise in terms of numbers. Like Guantanamo, Bagram should be closed. The theory that the U.S. is entitled to detain any individual anywhere in the world at any time, and hold them indefinitely on the premise that it is involved in an all-pervasive global and perpetual armed conflict against non-state actors, should be expressly disavowed and rejected by Mr. Obama and his administration, Congress, and the courts.

ADVANTAGE ONE: STABILITY A. DETAINEE ABUSES RECRUITS FOREIGN FIGHTERS, DISCOURAGES OUR ALLIES FROM COOPERATING WITH US -DESTABILIZES THE ENTIRE COUNTRY Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.663. Alexander's assessment is not just that of a single individual, albeit one who has conducted hundreds of interrogations, and supervised an additional thousand. His conclusions have been echoed and expanded upon by leading U.S. military officials including Alberto J. Mora, former General Counsel of the Department of the Navy. General Counsel Mora has described the use of harsh interrogation practices as "a mistake of massive proportions." Mora details the ways in which U.S. detention and interrogation policies profoundly hampered "our national security strategy and our operational effectiveness in the War on Terror." U.S. operational effectiveness was hampered by an inability to sustain military, intelligence, and law enforcement alliances because U.S. allies feared being tainted or compromised by association with U.S. practices. But, more to the point of this article's focus, U.S. treatment of detainees directly affected its tactical and operational effectiveness because it served as the primary source of recruiting foreign fighters to Iraq. B. THIS SPILLS OVER INTO THE ENTIRE REGION Isil Akbulut, "If Afghanistan Collapses," TURKISH WEEKLY, 7-19-07, www.turkishweekly.net/comments.php?id=2669 Apart from Pakistan, Afghanistan is a key country for the Central Asia as well. Uzbeks, Tajiks and other societies are widespread in Afghanistan, and the changes in this country would inevitably affect the neighboring Muslim Central Asian republics. Besides most of Central Asian republics, especially Uzbekistan would not be able to resist the extremist and radical movements in Afghanistan. Under these circumstances, there is the risk that Afghanistan's problems would spread not only on the direction of Southern Asia but also to Central Asia. C. THIS RISKS A NUCLEAR WAR Stephen Blank, professor at the Strategic Studies Institute of the U.S. Army War College. American Grand Strategy and the Transcaspian Region. World Affairs. Fall 2000. http://www.highbeam.com/doc/1G1-67046851.html Thus many structural conditions for conventional war or protracted ethnic conflict where third parties intervene now exist in the Transcaucasus and Central Asia. The outbreak of violence by disaffected Islamic elements, the drug trade, the Chechen wars, and the unresolved ethnopolitical conflicts that dot the region, not to mention the undemocratic and unbalanced distribution of income across corrupt governments, provide plenty of tinder for future fires. Many Third World conflicts generated by local structural factors also have great potential for unintended escalation. Big powers often feel obliged to rescue their proxies and proteges. One or another big power may fail to grasp the stakes for the other side since interests here are not as clear as in Europe. Hence commitments involving the use of nuclear weapons or perhaps even conventional war to prevent defeat of a client are not well established or clear as in Europe. For instance, in 1993 Turkish noises about intervening on behalf of Azerbaijan induced Russian leaders to threaten a nuclear war in that case. Precisely because Turkey is a NATO ally but probably could not prevail in a long war against Russia, or if it could, would conceivably trigger a potential nuclear blow (not a small possibility given the erratic nature of Russia's declared nuclear strategies), the danger of major war is higher here than almost everywhere else in the CIS or the "arc of crisis" from the Balkans to China. As Richard Betts has observed, The greatest danger lies in areas where (1) the potential for serious instability is high; (2) both superpowers perceive vital interests; (3) neither recognizes that the other's perceived interest or commitment is as great as its own; (4) both have the capability to inject conventional forces; and (5) neither has willing proxies capable of settling the situation. D. OUR DETENTION POLICIES UNDERMINE THE WAR ON TERROR -- ALIENATE KEY ALLIES, NEED TO COME UP WITH A BETTER POLICY TO SOLVE Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. We still have prisoners -- and plenty of them. We still have no acceptable legal denomination for those under guard. We still have no legal mechanisms to try the detainees. And we still lack the kind of training and policies that prevent torture and abuse. The costs of this cannot be overstated. Our policies have hindered America's ability to fight terrorism. Alienating allies, not to mention stymieing the cooperation of Muslim communities, is what happens when you detain the ne'er-do-wells and bystanders along with the criminals absent due process. The strategy of being an independent player whose activities are secretive and whose judgments are noncollaborative denies America the essential aspect of capturing violent extremists: international cooperation. Terrorists' motives and deeds must be pieced together from various transnational sources. Counterterrorism is a global effort in which assistance and support between nations are essential. If we course-correct, our international reputation can be salvaged. If we create viable policy, we will finally have the ability to separate the innocent from the guilty. The world, and the nation, await a new direction.

E. TERRORISM RISKS EXTINCTION Harvey Gordon, Visiting Lecturer, Forensic Psychiatry, Tel Aviv University, "The 'Suicide' Bomber: Is It a Psychiatric Phenomenon?" PSYCHIATRIC BULLETIN v. 26, 2002, pp.285-287. Available from the World Wide Web at: http://pb.rcpsych.org/cgi/content/full/26/8/285 Although terrorism throughout human history has been tragic, until relatively recently it has been more of an irritant than any major hazard. However, the existence of weapons of mass destruction now renders terrorism a potential threat to the very existence of human life (Hoge & Rose, 2001). Such potential global destruction, or globicide as one might call it, supersedes even that of genocide in its lethality. Although religious factors are not the only determinant of 'suicide' bombers, the revival of religious fundamentalism towards the end of the 20th century renders the phenomenon a major global threat. Even though religion can be a force for good, it can equally be abused as a force for evil. Ultimately, the parallel traits in human nature of good and evil may perhaps be the most durable of all the characteristics of the human species. There is no need to apply a psychiatric analysis to the 'suicide' bomber because the phenomenon can be explained in political terms. Most participants in terrorism are not usually mentally disordered and their behaviour can be construed more in terms of group dynamics (Colvard, 2002). On the other hand, perhaps psychiatric terminology is as yet deficient in not having the depth to encompass the emotions and behaviour of groups of people whose levels of hate, low self-esteem, humiliation and alienation are such that it is felt that they can be remedied by the mass destruction of life, including their own. F. BRINGING DETENTION POLICY INTO ALIGNMENT WITH INTERNATIONAL LAW IS VITAL TO STABILIZING AFGHANISTAN Human Rights Watch, "US: Reform Afghanistan Detention Policy," 11-14-09, www.hrw.org/en/news/2009/11/13/us-reform-afghanistan-detention-policy, accessed 4-7-10. The Obama administration should revise its detention policies in Afghanistan to make them consistent with international law, Amnesty International, Human Rights First, and Human Rights Watch said today. The United States military is hosting the media and some nongovernmental organizations today at its recently constructed but empty detention facility in Parwan province, Afghanistan. The three organizations urged the US to end arbitrary detention in Afghanistan and to fully align US detention practices with international law. The organizations noted that the US has made some recent changes in its detention policy in Afghanistan. These include providing detainees with "notice of the basis of their internment" and the right to call witnesses and question government witnesses. "It's common knowledge that Afghans perceive US detention operations as secretive and lacking in due process," said Sahr MuhammedAlly, senior associate at Human Rights First. "The United States must remedy this problem and take the critical step of bringing its detention practices into an appropriate legal framework that is consistent with international and Afghan law, and allows and provides detainees with a sufficient way to challenge their detention. Such reforms are a necessary precondition to establishing long-term stability in Afghanistan through the rule of law."

ADVANTAGE TWO: INTERNATIONAL LAW A. BAGRAM IS BEING USED TO MOVE DETAINEES OUTSIDE OF THE HABEAS RULINGS RELATED TO GUANTANAMO -- FAILURE TO REVERSE THE POLICY DOOMS US TO REPEAT THE DETENTION DISASTERS OF THE BUSH PRESIDENCY, SERIOUSLY UNDERMINES INTERNATIONAL LAW Karen J. Greenberg, Executive Director, Center on Law and Security, NYU School of Law, "Obama's "Remainees": will Not One But Two Guantanamos Define the American Future?" HUFFINGTON POST, 4-19-10, www.huffingtonpost.com/karen-j-greenberg/obamas-remainees-will-not_b_543300.html, accessed 4-21-10. In other words, what's being proposed is the moving of a (renamed) Guantanamo, body and soul, to the United States. That's already a dismal prospect, but hardly the end of the line when it comes to post-Guantanamo thinking for this administration. In fact, a new idea has emerged recently. Last month, according to the Los Angeles Times, the White House hinted that the administration was contemplating using the already existing prison at Bagram Air Base in Afghanistan as yet another replacement for Guantanamo -apparently for housing future prisoners in what is no longer officially termed the Global War on Terror. Were this to happen, it would be a squaring of the circle, a strange return to the origins of it all. Bagram was, notoriously enough, the place where, in 2001-2002, many of the prisoners who ended up at Guantanamo were first held (and often badly mistreated). Perhaps my mind has simply taken a cynical turn, but I can't help wondering whether the administration might someday simply dump some of the Guantanamo remainees there as well. Then, we would be grimly back where George W. Bush's Global War on Terror began. The "advantage" of Bagram, of course, is simple enough: prisoners on an American military base in distant Afghanistan might not be subject to the same levels of scrutiny or legal "meddling" (as the supporters of the Guantanamo process like to term it) as in Cuba or the United States -- all those habeas challenges and challenges to military commissions that have, in eight years, convicted only three detainees (only one of whom still remains in custody), and all those human rights concerns. There are indications that, in considering the re-use of Bagram as a parking lot for "the worst of the worst," Obama administration officials remain remarkably blind to the history they are threatening to repeat. Evidently they don't grasp the obvious parallels between Guantanamo and Bagram. Nevertheless, the language they are wielding has begun to sound eerily familiar. Last month, for instance, a senior Pentagon official was quoted saying that the idea of reinvigorating Bagram as a holding facility for such prisoners might not be the ideal solution, but was the "least bad" choice. How similar that sounds to the words former Secretary of Defense Donald Rumsfeld applied to Guantanamo Bay when he announced its opening in 2002. It was, he acknowledged almost apologetically, the "least worst place." If a two-prison solution were to go into effect, that would mean President Obama had fully accepted the Bush administration's notion of a generational global battlefield against terror. After all, that's what underlay Gitmo from the beginning and that's what would underlie a rejuvenated Bagram as well. In theory, there could be a workable solution lurking somewhere in all this murky planning, if it were undergirded with actual legal definitions; if, in the case of Thomson, the Illinois facility-to-be, the prisoners placed there were first charged, tried, and convicted; and if, in the case of Bagram, anyone placed there was declared a prisoner of war, or given some legally recognized status according to the laws of war or the Geneva Conventions. But as of now, it looks like both facilities will instead offer an endorsement of so-called preventive detention. The administration's disingenuousness on this point is overwhelming. On the one hand, we are told that the terms "war on terror" and "enemy combatants" are history and that Guantanamo will soon join them. But Guantanamo was never purely a place in Cuba. What made it so wrong was the system of indefinite detention that lay at its core and that continues to defy the rule of law as defined by the U.S. Constitution, U.S. military law, and the international conventions that this country has signed onto. Closing Guantanamo does not simply mean emptying the prison cells at that naval base and throwing away the keys. It means ending the policy that has become synonymous with Guantanamo -- of incarcerating individuals without the need to prove their guilt, and without a clear and recognizable process for determining the grounds for their detention. Faced with opposition in Congress and in public sentiment generally, the Obama administration increasingly seems focused on ending not the conceptual nightmare we call Guantanamo, but the irritating problem that Guantanamo represents. Unfortunately, as this administration will learn to its regret, there is no closing Guantanamo if preventive detention continues. In reality, a two-Guantanamo policy is likely to prove an unwieldy disaster and will hardly lead the country out of the quagmire of incarceration that the Bush administration mired us in. In the end, that quagmire is not legal (though the legal issues it raises are fundamental), nor political (though it may look that way from Capitol Hill): it's psychological. And there is only one way to escape from it: end once and for all the notion of preventive detention by placing firm and unbending confidence in our military, our intelligence agencies, and our system of justice to identify enemies, prosecute those whom they can, and abide by the laws of war for prisoners of war. Perhaps it's also time for us to accept life in a world of imperfect security. It may sound harsh, but not nearly as soul-defeating as the idea that not one, but two Guantanamos, will define the American future.

B. CURRENT PLANS TO SHIFT TO BAGRAM AND OTHER AFGHANISTAN FACILITIES MAKE THE PROBLEM WORSE Glenn Greenwald, "Bagram: The Sham of Closing Guantanamo," SALON, 9-16-09, www.salon.com/news/opinion/glenn_greenwald/2009/09/15/bagram/, accessed 4-21-10. This is the same issue raised by Obama's demand for a preventive detention scheme: what is the point of closing Guantanamo if all of its architecture and defining traits -- indefinite detentions with no trials -- will be preserved and simply moved elsewhere? What made Guantanamo evil and destructive isn't that it was located in Cuba. What made it such was that -- to use Obama's melodramatic campaign language -- it was a "legal black hole." Closing it, only to re-create its core tyrannies in Bagram and re-build it as part of some "preventive detention" scheme, is worse than useless: it's actively misleading. There will be some American journalists and probably some hardened Obama loyalists who believe that closing Guantanamo -- while moving and re-creating its core features -is some sort of "change." But the rest of the world is highly unlikely to be tricked. C. THESE DETENTIONS AMOUNT TO A CRIME AGAINST HUMANITY DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. A major UN report on secret detention policies around the world concludes the practice could reach the threshold of a crime against humanity. An advance unedited version of the report was published last week and will be presented to the UN Human Rights Council in March. The report examines the vast network of secret prisons connected to the so-called global war on terror. Well, a new investigation by journalist Anand Gopal reveals some harrowing details about America's secret prisons in Afghanistan, under both the Bush and Obama administrations. What emerges is a world that goes far beyond the main prison in Bagram and includes disappearances, night raids, hidden detention centers and torture. Gopal interviewed Afghans who were detained and abused at several disclosed and undisclosed sites at US and Afghan military bases across the country. He also reveals the existence of another secret prison on Bagram Air Base that even the Red Cross doesn't have access to. It's dubbed the Black Jail and reportedly is run by US Special Forces. D. WE MUST ACT -- U.S. ADHERENCE TO INTERNATIONAL LAW IS VITAL TO ITS STRENGTH 422 Current and Former Members of the United Kingdom and European Union Parliaments, Amicus Brief for the Petitioner, Claude B. Stansbury, Counsel of Record, in Salim Ahmed Hamdan, Petitioner, v. Donald H. Rumsfeld, et al., Respondents, n. 05-184, 2005 U.S. Briefs 194, 2006 U.S. S. Ct. Briefs LEXIS 6, January 5, 2006, lexis. It Is Crucial For The International Legal Order That The United States Abide By Its International Legal Commitments. The obligations and protections established in human rights treaties and customary law are fundamental components of the modern, liberal world order that the United States, together with its allies and other like-minded nations, strives to establish and encourage. To a far greater extent than domestic law, international law depends for its vitality and efficacy on the compliance by States with its dictates. It undermines the political and moral authority of the United States and damages the rule of law in a troubled world if the United States, contrary to its long tradition, fails to uphold the international standards that it has been so instrumental in creating and with which it has urged other nations to comply. The damage is all the greater when, as did the Court of Appeals, the United States denies that these standards even apply to its conduct. E. STRONG INTERNATIONAL LEGAL CODES ARE NECESSARY TO PREVENT EXTINCTION Rhonda Copelon, Professor, Law, CUNY, "The Indivisible Framework of International Human Rights," NEW YORK CITY LAW REVIEW, 1998/1999, p.71-72. The indivisible human rights framework survived the Cold War despite U.S. machinations to truncate it in the international arena. The framework is there to shatter the myth of the superiority of the U.S. version of rights, to rebuild popular expectations, and to help develop a culture and jurisprudence of indivisible human rights. Indeed, in the face of systemic inequality and crushing poverty, violence by official and private actors, globalization of the market economy, and military and environmental depredation, the human rights framework is gaining new force and new dimensions. It is being broadened today by the movements of people in different parts of the world, particularly in the Southern Hemisphere and significantly of women, who understand the protection of human rights as a matter of individual and collective human survival and betterment. Also emerging is a notion of third-generation rights, encompassing collective rights that cannot be solved on a state-by-state basis and that call for new mechanisms of accountability, particularly affecting Northern countries. The emerging rights include human-centered sustainable development, environmental protection, peace, and security. Given the poverty and inequality in the United States as well as our role in the world, it is imperative that we bring the human rights framework to bear on both domestic and foreign policy.

F. DESPITE CLAIMS TO THE CONTRARY, WE ARE STILL TORTURING PEOPLE AT THESE SECRET PRISONS BBC, "Afghans "Abused at Secret Prison' at Bagram Airbase," 4-15-10, http://news.bbc.co.uk/2/hi/south_asia/8621973.stm, accessed 4-16-10. Afghan prisoners are being abused in a "secret jail" at Bagram airbase, according to nine witnesses whose stories the BBC has documented. The abuses are all said to have taken place since US President Barack Obama was elected, promising to end torture. The US military has denied the existence of a secret detention site and promised to look into allegations. Bagram was the site of a controversial jail holding hundreds of inmates, who have now been moved to another complex. The old prison was notorious for allegations of prisoner torture and abuse. But witnesses told the BBC in interviews or written testimony that abuses continue in a hidden facility. Sleep deprivation "They call it the Black Hole," said Sher Agha who spent six days in the facility last autumn. "When they released us they told us we should not tell our stories to outsiders because that will harm us." Sher Agha and others we interviewed complained their cells were very cold. "When I wanted to sleep and started shivering with cold I started reciting the holy Koran," he said. But sleep, according to the prisoners interviewed, is deliberately prevented in this detention site. "I could not sleep, nobody could sleep because there was a machine that was making noise," said Mirwais, who said he was held in the secret jail for 24 days. "There was a small camera in my cell, and if you were sleeping they'd come in and disturb you," he added. The prisoners, who were interviewed separately, all told very similar stories. Most of them said they had been beaten by American soldiers at the point of arrest before being taken to the prison. G. WE HAVE AN ABSOLUTE DUTY TO REJECT TORTURE Amnesty International, Response to the Proposed "Interrogations Procedures Act," February 16, 2005, http://web.amnesty.org/library/Index/ENGAMR510392005 What should matter even more is that the absolute duty to treat all prisoners with dignity without exception is a moral value reflecting fundament principles of humanity, as well as part of the bedrock of international law. The proposed legislation threatens to destroy all that and replace it by a legalized, regularized, supervised, and officially approved form of cruelty. The act of one individual terrorizing another serves only to destroy the values it claims to be protecting.
STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (BAGRAM)

1. THE U.S. IS HOLDING HUNDREDS OF PERSONS AT BAGRAM, EXCLUSIVELY UNDER THE CONTROL OF THE MILITARY Baher Azmy, Professor, Law, Seton Hall University, "Executive Detention, Boumediene, and the New Law of Habeas," IOWA LAW REVIEW v. 95, February 2010, p.483-484. The detention facility in the Airfield -- known as the Bagram Theater Internment Facility -- is under the exclusive command and control of the U.S. military. The number of detainees held at Bagram increased following the 2004 Rasul decision granting Guantanamo detainees access to the writ; though exact figures are unavailable, recent estimates suggest that the Bagram prison holds over 630 detainees, many of whom have been held for over seven years. And, while a number were apprehended in Afghanistan, it appears that others were brought to Bagram from outside that theater of hostilities. The Government also plans to build a new prison on the Airfield, intended to house an additional 1100 detainees. Although information about Bagram is far more limited than that now available about Guantanamo, there have been a wealth of reports of torture and other abuses committed by prison guards and interrogators, no doubt emerging in part from the absence of legal or humanitarian constraints on detention operations there. 2. THE U.S. HOLDS A LARGE NUMBER OF PRISONERS IN AFGHANISTAN John R. Crook, "United States Holds Large Numbers of Detainees in Iraq, Afghanistan," AMERICAN JOURNAL OF INTERNATIONAL LAW v. 102, October 2008, p.879-880. The United States also is holding a significant number of detainees in Afghanistan. At the start of 2008, the United States held 630 prisoners at a detention center at Bagram air base, north of Kabul. Conditions there are said to be crowded and harsh, and the International Committee of the Red Cross (ICRC) reportedly has criticized aspects of U.S. detention operations, although details are not public. In January, the ICRC initiated a video teleconference facility utilizing U.S.-supplied equipment to allow detainees at Bagram to see and speak with their families at the ICRC's offices in Kabul. Some observers predict U.S. detainees in Afghanistan may begin to seek relief in U.S. courts, paralleling the extensive litigation brought by Guantanamo detainees. Plans to transfer many detainees to a new facility operated by Afghan forces have not come to fruition, and the U.S. military is reportedly planning to build a new detention facility able to hold as many as 1000 detainees. 3. OBAMA ADMINISTRATION IS ACTUALLY EXPANDING EXTRA-JUDICIAL DETENTION, USING FACILITIES IN AFGHANISTAN Stephen Foley, "Very Bad News: Afghanistan's Bagram Air Base Will Be Obama's Guantanamo," INDEPENDENT, 2-22-09, www.alternet.org/rights/128273/, accessed 4-21-10. Less than a month after signing an executive order to close the Guantanamo Bay prison camp, President Barack Obama has quietly agreed to keep denying the right to trial to hundreds more terror suspects held at a makeshift camp in Afghanistan that human rights lawyers have dubbed "Obama's Guantanamo." In a single-sentence answer filed with a Washington court, the administration dashed hopes that it would immediately rip up Bush-era policies that have kept more than 600 prisoners in legal limbo and in rudimentary conditions at the Bagram air base, north of Kabul. Now, human rights groups say they are becoming increasingly concerned that the use of extra-judicial methods in Afghanistan could be extended rather than curtailed under the new U.S. administration. The air base is about to undergo a $60 million expansion that will double its size, meaning it can house five times as many prisoners as remain at Guantanamo. Apart from staff at the International Red Cross, human rights groups and journalists have been barred from Bagram, where former prisoners say they were tortured by being shackled to the ceiling of isolation cells and deprived of sleep. The base became notorious when two Afghan inmates died after the use of such techniques in 2002, and although treatment and conditions have been improved since then, the Red Cross issued a formal complaint to the U.S. government in 2007 about harsh treatment of some prisoners held in isolation for months. While the majority of the estimated 600 prisoners are believed to be Afghan, an unknown number -- perhaps several dozen -- have been picked up from other countries. 4. BAGRAM IS OPEN FOR BUSINESS AND HAS HUNDREDS OF DETAINEES Tim Golden, "U.S. Prison Grows Beyond Capacity in Afghanistan," NEW YORK TIMES 1-7-08, http://www.nytimes.com/2008/01/07/world/asia/07iht-07bagram.9047054.html?_r=1, accessed 4-7-10. The American detention center, established at the Bagram military base as a temporary screening site after the invasion of Afghanistan in 2001, is now teeming with some 630 prisoners -- more than twice the 275 being held at Guantanamo. The administration has spent nearly three years and more than $30 million on a plan to transfer Afghan prisoners held by the United States to a refurbished high-security detention center run by the Afghan military outside Kabul. But almost a year after the Afghan detention center opened, American officials say it can accommodate only about half the prisoners they once planned to put there. As a result, the makeshift American site at Bagram will probably continue to operate with hundreds of detainees for the foreseeable future, the officials said.
STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (BAGRAM) cont'd

5. BAGRAM IS BEING EXPANDED -- IS BECOMING THE NEW GUANTANAMO Nina Werkhaeuser and Deanne Corbett, "Will Bagram Become Obama's Guantanamo?" DEUTSCHE WELLE, 4-18-09, ww.dw-world.de/dw/article/0,,4184012,00.html, accessed 4-21-10. Pardiss Kebriaei, a lawyer for the Center for Constitutional Rights, doesn't think the Obama administration will shut down the military prison in Bagram. Indeed, she says the opposite may be true. "There have been plans that we've read about of the US building more permanent facilities at Bagram and in fact, building a facility that would hold over 1,000 detainees in addition to the nearly 700 who are there right now," she said. "There's new construction happening at the base, there's greater permanence. So given the fact that the US plans to send more troops to Afghanistan and plans on being present in Afghanistan for the foreseeable future, I think detentions will also increase, and this will be an important base for the United States." The subject of Bagram has so far received little coverage in the German media. German politicians -- including those who usually take every opportunity to lobby for Guantanamo's closure -- have been conspicuously quiet on the subject. German Development Minister Heidemarie Wieczorek-Zeul has largely been a lone voice in demanding for the Afghan prison to be shut down. Meanwhile, human rights activists say that Bagram is well on the way to becoming a second Guantanamo. They're hoping that on this issue, as on so many others, President Obama will choose to take a different path from his predecessor, George W. Bush. 6. WE STILL CONTINUE TO HOLD MANY PRISONERS, INCLUDING AT BAGRAM David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.725-726. Since Congress authorized the use of military force against the perpetrators of 9/11 and those who harbor them, and President Bush launched an attack on Afghanistan in 2001, the United States military has detained well over a thousand "enemy combatants" allegedly connected to these conflicts. Some were captured on the battlefield; others were found as far from Afghanistan as Bosnia, Africa, and Chicago's O'Hare Airport. Many are being held in Afghanistan at Bagram Air Force Base; approximately 775 have been held at Guantanamo Bay, Cuba, where many remain. An undisclosed number have been detained in secret CIA prisons (which were closed by President Obama in one of his first actions as President). Some of the detainees are said to have been members of the Taliban or al Qaeda military forces carrying weapons on the battlefield, but others are accused merely of being "associated" in an unspecified way with one of those groups. Many have been detained for more than seven years. 7. OBAMA ADMINISTRATION IS INCREASINGLY USING BAGRAM FOR DETENTION Charlie Savage, "Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus," NEW YORK TIMES, 4-2-09, www.nytimes.com/2009/04/03/washington/03bagram.html?ref=global-home, accessed 4-7-10. The importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has increased under the Obama administration, which prohibited the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantanamo closed within a year. The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration's view that courts had no jurisdiction over detainees there. 8. THE U.S. CURRENTLY HOLDS 600 PEOPLE AT BAGRAM Charlie Savage, "Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus," NEW YORK TIMES, 4-2-09, www.nytimes.com/2009/04/03/washington/03bagram.html?ref=global-home, accessed 4-7-10. The United States is holding about 600 people at Bagram without charges and in spartan conditions. United States officials have never provided a full accounting of the prison population, but an American government official, speaking on condition of anonymity because it is against policy to discuss details of the Bagram prison, said that fewer than a dozen detainees fell into the category affected by the ruling -- non-Afghans captured beyond Afghan borders.
STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (FIELD DETENTION CENTERS)

1. ABUSES ARE BEING SHIFTED TO FIELD DETENTION CENTERS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. Night raids are only the first step in the American detention process in Afghanistan. Suspects are usually sent to one of a series of prisons on US military bases around the country. There are officially nine such jails, called Field Detention Sites in military parlance. They are small holding areas, often just a clutch of cells divided by plywood, and are mainly used for prisoner interrogations. In the early years of the war, these were but way stations for those en route to Bagram prison, a facility with a notorious reputation for abusive behavior. As a spotlight of international attention fell on Bagram in recent years, wardens there cleaned up their act, and the mistreatment of prisoners began to shift to the little-noticed Field Detention Sites. Of the twenty-four former detainees interviewed for this article, seventeen claim to have been abused at or en route to these sites. Doctors, government officials and the Afghan Independent Human Rights Commission, an independent Afghan body mandated by the Afghan Constitution to investigate abuse allegations, corroborate twelve of these claims. One of these former detainees is Noor Agha Sher Khan, who used to be a police officer in Gardez, a mud-caked town in the eastern part of the country. According to Sher Khan, American forces detained him in a night raid in 2003 and brought him to a Field Detention Site at a nearby US base. "They interrogated me the whole night," he recalled, "but I had nothing to tell them." Sher Khan worked for a police commander whom US forces had detained on suspicion of having ties to the insurgency. He had occasionally acted as a driver for this commander, which made him suspicious in American eyes. The interrogators blindfolded him, taped his mouth shut and chained him to the ceiling, he alleges. Occasionally they unleashed a dog, which repeatedly bit him. At one point they removed the blindfold and forced him to kneel on a long wooden bar. "They tied my hands to a pulley [above] and pushed me back and forth as the bar rolled across my shins. I screamed and screamed." They then pushed him to the ground and forced him to swallow twelve bottles of water. "Two people held my mouth open, and they poured water down my throat until my stomach was full and I became unconscious," he said. "It was as if someone had inflated me." After he was roused, he vomited uncontrollably. 2. THESE FIELD DETENTION CENTERS ARE SHROUDED IN SECRECY Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. The matter could be cleared up if the US military were less secretive about its detention process. But secrecy has been the order of the day. The nine Field Detention Sites are enveloped in a blanket of official secrecy, but at least the Red Cross and other humanitarian organizations are aware of them. There may, however, be other sites whose existence on the scores of US and Afghan military bases that dot the country have not been disclosed. One example, according to former detainees, is a detention facility at Rish-Khor, an Afghan army base that sits atop a mountain overlooking the capital, Kabul.
STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (GITMO REPLACEMENT)

1. BAGRAM IS EXPANDING, WILL BE USED TO REPLACE GITMO Daniel Tencer, "Report: Afghans in Secret Jail 'Made to Dance' to Use Bathroom," THE RAW STORY, 4-15-10, http://rawstory.com/rs/2010/0415/afghans-abused-secret-jail-bagram/, accessed 4-16-10. Faced with a lawsuit from the ACLU, the US military earlier this year released a long-secret list of prisoners at Bagram. The list showed some 645 prisoners being held at the facility, but the BBC now reports that number to be closer to 800, thanks to an increase in prisoner intake likely linked to the increased military effort in Afghanistan in recent months. "The US military itself has admitted that about 80% of those at Bagram are probably not hardened terrorists," the BBC reports. In March, the Times of London reported that the Bagram facility could be expanded and used as a replacement for the Guantanamo Bay detention center. The idea is "being considered as US officials try to find an alternative to Guantanamo Bay," the Times said. Last year, former CBS anchorman Dan Rather said "there is a school of thought" that Bagram is already replacing Guantanamo as the site where terrorist suspects from around the world are to be held. "Some of the contentions that were made about Guantanamo are starting to be made about Bagram," Rather told MSNBC's Rachel Maddow. "The critical thing is, there is no transparency." 2. BAGRAM IS BEING STRONGLY CONSIDERED AS A REPLACEMENT FOR GUANTANAMO Michael Evans, "Bagram Prison in Afghanistan May Become the New Guantanamo," THE TIMES, 3-22-10, http://www.timesonline.co.uk/tol/news/world/us_and_americas/article7070460.ece, accessed 4-7-10. The American detention centre at Bagram in Afghanistan could be expanded into a Guantanamo-style prison for terrorist suspects detained around the world. This is one of the options being considered as US officials try to find an alternative to Guantanamo Bay, which President Obama promised to close within a year of taking office. The continued use of the prison in Cuba has presented Mr Obama with an embarrassing dilemma because of the difficulty of finding somewhere acceptable to imprison those considered to be the most dangerous detainees. A decision to send al-Qaeda suspects detained in countries such as Yemen and Somalia to Bagram, which is located north of Kabul, would be highly controversial. 3. BAGRAM IS BEING CONSIDERED AS A REPLACEMENT FOR GITMO David S. Cloud and Julian E. Barnes, "U.S. May Expand Use of Its Prison in Afghanistan," LOS ANGELES TIMES, 3-21-10, www.latimes.com/news/nation-and-world/la-fg-afghan-prison21-2010mar21,0,1199314.story, accessed 4-10-10. The idea of using Bagram emerged as the White House National Security Council solicited suggestions on how to handle detainees from the Justice Department, CIA and other government agencies. The procedures for holding suspected terrorists have been largely in limbo as the White House sought to carry out Obama's pledge last year to close the Guantanamo prison and overhaul the U.S. detention process. Although it has been known for some time that the administration was seeking options other than Guantanamo for holding existing prisoners, it has not been reported previously that it was considering Bagram for suspected terrorists that might be captured in the future. 4. BAGRAM CONTINUES TO BE USED TO DODGE THE GUANTANAMO DETAINEE RULINGS Glenn Greenwald, "Obama and Habeas Corpus -- Then and Now," SALON, 4-11-09, www.salon.com/news/opinion/glenn_greenwald/2009/04/11/bagram/, accessed 4-21-10. In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process. So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn't apply to them. The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game -- fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process. Put another way, you just close Guantanamo, move it to Afghanistan, and -- presto -- all constitutional obligations disappear. Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.
STATUS QUO EXT: DETENTIONS NOW -- AFGHANISTAN (GITMO REPLACEMENT) cont'd

5. BAGRAM IS BEING USED TO EVADE THE GUANTANAMO DETENTION RULINGS Adam Serwer, "The Blight of Bagram," THE AMERICAN PROSPECT, 2-26-09, www.prospect.org/cs/articles?article=the_blight_of_bagram, accessed 4-21-10. Jonathan Hafetz, a lawyer for the American Civil Liberties Union who has represented several detainees, describes the government's position on Bagram and Guantanamo as a distinction without a difference, and worries that by maintaining Bagram as a legal black hole for detainees, the Obama administration will continue to hold terror suspects indefinitely without trial, even if Gitmo is closed. "The fact is that since this first Supreme Court ruling upholding Gitmo detainee's access to habeas corpus," Hafetz explains, "the administration stopped bringing people to Guantanamo and started bringing them to Bagram. The population skyrocketed." All of the detainees involved in the hearing in which the Obama administration asserted the same position as the Bush administration were brought to Bagram from outside Afghanistan. "There's no difference other than that they were brought to Bagram instead of Guantanamo," Hafetz says. 6. BAGRAM IS FAVORED BY OFFICIALS AS A NEW LOCATION OVER A DOMESTIC SITE Michael Evans, "Bagram Prison in Afghanistan May Become the New Guantanamo," THE TIMES, 3-22-10, http://www.timesonline.co.uk/tol/news/world/us_and_americas/article7070460.ece, accessed 4-7-10. Bagram is synonymous in Afghan eyes with past human rights abuses, although the old prison has been replaced by a new facility at the large US airbase. A senior Pentagon official said: "No one particularly likes any of the choices before us right now, but Bagram may be the least bad among them." The other alternative -- of using a special prison in the US -- is seen as less practical because the detainees would have to be put through the American justice system, and some of the suspects considered by the US as the most dangerous would be difficult to prosecute because of the lack of sufficient evidence. Congress would also oppose such a move. 7. OBAMA ADMINISTRATION IS EVEN CONSIDERING USING BAGRAM AS A REPLACEMENT FOR GITMO David S. Cloud and Julian E. Barnes, "U.S. May Expand Use of Its Prison in Afghanistan," LOS ANGELES TIMES, 3-21-10, www.latimes.com/news/nation-and-world/la-fg-afghan-prison21-2010mar21,0,1199314.story, accessed 4-10-10. The White House is considering whether to detain international terrorism suspects at a U.S. military base in Afghanistan, senior U.S. officials said, an option that would lead to another prison with the same purpose as Guantanamo Bay, which it has promised to close. The idea, which would require approval by President Obama, already has drawn resistance from within the government. Army Gen. Stanley A. McCrystal, the top commander of U.S. and NATO forces in Afghanistan, and other senior officials strongly oppose it, fearing that expansion of the U.S. detention facility at Bagram air base could make the job of stabilizing the country even tougher. That the option of detaining suspects captured outside Afghanistan at Bagram is being contemplated reflects a recognition by the Obama administration that it has few other places to hold and interrogate foreign prisoners without giving them access to the U.S. court system, the officials said. Without a location outside the United States for sending prisoners, the administration must resort to turning the suspects over to foreign governments, bringing them to the U.S. or even killing them. 8. BAGRAM IS BEING EXPANDED AS A REPLACEMENT FOR GUANTANAMO Mark Thompson, "Another Gitmo Grows in Afghanistan," TIME, 1-5-09, www.time.com/time/nation/article/0,8599,1869519,00.html, accessed 4-7-10. The incoming Obama Administration says it wants to shut down the U.S. military prison at Guantanamo Bay. But even if Guantanamo closes, the controversial U.S. practice of jailing suspected al-Qaeda militants and other terrorists indefinitely won't end, because such detentions continue on an even greater scale at the U.S. military base at Bagram, Afghanistan, 40 miles north of Kabul. Approximately 250 detainees are currently being held at Guantanamo; an estimated 670 are locked up under similar conditions at Bagram. The Obama transition team has declined to comment on whether U.S. detention policy for enemy combatants will change with a new Administration. Nevertheless, the U.S. military is building a new prison for what it calls "unlawful enemy combatants" at Bagram that won't be finished until Obama is well settled in the White House. "The Obama Administration is inheriting not so much a shrinking Guantanamo as an expanding Bagram," says Tina Foster, executive director of the International Justice Network, a nonprofit legal group based in New York City. (Read "Trying to Tie Obama's Hands on Gitmo.")

STATUS QUO EXT: DETENTIONS NOW -- GENERAL
1.
THE U.S. IS INDISCRIMINATELY ROUNDING UP INNOCENT PERSONS AND JUST SENDING THEM TO BAGRAM REVOLUTION, "Bagram Prison, Afghanistan: A Brutal U.S. Torture Center," n. 177, 1-27-08, http://revcom.us/a/117/bagram-en.html, accessed 4-7-10. The number of detainees at Bagram rose from about 100 at the start of 2004 to over 600 in 2007, according to U.S. military figures. As part of their strategy in Afghanistan, the U.S. and allied troops carry out indiscriminate mass round-ups and keep people caught up in such sweeps in captivity for long periods of time. Many Afghans are also rounded up, without further verification or investigation, off of anonymous "tips" provided to U.S. authorities based on personal or tribal grudges.
2.
EVEN IF BAGRAM IS HANDED OVER, THE U.S. WILL CONTINUE TO CONTROL MOST OF THE DETENTION PROCESS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. In the past two years American officials have moved to reform the main prison at Bagram, if not the Black Jail. Torture has stopped, and prison officials now boast that the typical inmate gains fifteen pounds while in custody. In the early months of this year, officials plan to open a dazzling new prison that will eventually replace Bagram, one with huge, airy cells, the latest medical equipment and rooms for vocational training. The Bagram prison itself will be handed over to the Afghans in the coming year, although the rest of the detention process will remain in US hands.
3.
GUANTANAMO CLOSURE HAS NOT AFFECTED U.S. POLICY IN AFGHANISTAN Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. Images of caged and shackled detenus at the U.S. naval base at Guantanamo Bay, of torture at the Abu Ghraib prison in Iraq, and of the Gulfstream jets that were used to transfer detenus to secret prisons around the world, have been seared into the public consciousness and become indelibly linked to the U.S. response to the attacks of September 11, 2001. The news that the Guantanamo detention facility, a symbol of injustice and abuse, will no longer be operating after January 22, 2010 is to be welcomed. Guantanamo will be consigned to history, as will be, it is to be hoped, the "enhanced" interrogation techniques and secret Central Intelligence Agency (CIA) prisons. But these positive changes do not obscure the fact that hundreds of others languish in U.S. custody in Afghanistan with no means to challenge their detention, and that the U.S. continues to reserve the right to use rendition and allows the CIA to hold individuals on short-term and transitory basis without the legal framework governing such detentions being made clear. Nor can the positive changes mask the reality that the U.S. administration continues to invoke the spectre of an ill-defined and perpetual "war", where the battlefield could be anywhere from Peshawar to Peru, to claim the right to detain people until hostilities have ended, whenever that may be. On January 22, 2009, President Barack Obama signed three executive orders on detentions and interrogations. One of them committed his administration to closing the detention facility in Guantanamo Bay within a year and directed officials to conduct an immediate review of all cases of detenus being held there to determine what should happen to them. However, the new administration continues with the detentions in Afghanistan; in particular, the long-term detention facility operated by the U.S. Department of Defence at the Bagram airbase where hundreds of detenus are being held. New detentions by the U.S. and allied forces in Afghanistan have been occurring regularly.

STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- BAGRAM/AFGHANISTAN REPLACING GITMO
1.
BAGRAM REPLACED GITMO AS THE PRISON OF CHOICE IN THE WAR ON TERROR Greg Jaffe and Julie Tate, "A Jail in Bagram, a Detainee Protest," WASHINGTON POST, 7-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071503156.html, accessed 4-21-10. Unlike at Guantanamo Bay, where detainees have access to lawyers, the 620 prisoners at Bagram are not permitted to visit with their attorneys. Afghan government representatives are generally not allowed to visit or inspect the Bagram facility. President Obama signed an executive order in January to review detention policy options. The Justice Department is leading an interagency task force examining the issue and is set to deliver a report to the president on Tuesday. In recent years, Bagram became the destination for many terrorism suspects as Guantanamo Bay came under more scrutiny through legal challenges. The last significant group transfer from the battlefield to the prison in Cuba occurred in September 2004, when 10 detainees were moved there; in September 2006, 14 high-value detainees were transferred to Guantanamo Bay from secret CIA prisons. Since then, six detainees have been moved there. The Bagram prison population, meanwhile, has ballooned. U.S. officials are building a bigger facility there that will hold nearly 1,000. The Bagram facility includes inmates from Afghanistan as well as those arrested by U.S. authorities in other countries as part of counterterrorism efforts. The prison now holds close to 40 detainees who are not Afghan citizens, many of whom were not captured in Afghanistan.
2.
OBAMA WILL CONTINUE TO HOLD PERSONS AT BAGRAM Stephanie Hessler, constitutional lawyer, "The 'Other Gitmo'," THE DAILY STANDARD, 3-6-09, npg. Despite Johnson v. Eisentrager, the Supreme Court recently ruled that alien enemy combatants held at Guantanamo Bay can challenge their detention in federal court. But from a legal perspective, the Bagram facility differs from the Guantanamo Detention Camp in two key ways. First, Guantanamo is not in an active war zone. Second, the Supreme Court has decided that "in every practical sense Guantanamo is not abroad" because the United States exercises complete control over it. For these reasons, the Bush administration -- and now the Obama administration -- have argued that even if the writ of habeas corpus extends to Guantanamo, it surely must not extend halfway around the world to Bagram Airbase. Therefore, Guantanamo's closure may be largely a symbolic gesture. The Obama administration may continue to hold current (and likely future) detainees at Bagram, with far fewer rights than detainees at Gitmo. It remains to be seen the extent to which the human rights lobby will continue to fight for detainees now that the president they are fighting is Obama, not Bush.
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OBAMA HAS BEEN SILENT ON BAGRAM -- THE "OTHER GUANTANAMO" -- IT WILL LIKELY REMAIN OPEN AND A LEGAL BLACK HOLE Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. On that day, April 7, 2009, President Barack Obama had been in office for exactly 77 days. Shortly after his inauguration, Obama had ordered the closing of the Guantanamo Bay detention center and ordered the CIA to give up its secret "black site" prisons. He wanted to shed the dark legacy of the Bush years -- there should be no torture any more, no more secret kidnapping operations of terrorism suspects, no renditions. At least, that was what Obama had promised. He did not mention Bagram in his speeches. Azar was in Kabul on business. His company had signed contracts with the Pentagon worth $50 million (34 million) for reconstruction work in Afghanistan. On April 8, Azar was placed onto a Gulfstream and flown to the US state of Virginia to face charges. He was accused of having bribed his US Army contact to secure military contracts for his company, and he was later found guilty of bribery. It was a classic case of corruption, which is not the sort of crime for which a suspect is normally sent to a military prison. No one can explain to Azar why he was taken to Bagram, where the US military treated him like a terrorism suspect and, in doing so, inadvertently provided him with an insight into a world it normally prefers to keep under wraps. Bagram is "the forgotten second Guantanamo," says American military law expert Eugene Fidell, a professor at Yale Law School. "But apparently there is a continuing need for this sort of place even under the Obama administration." From the beginning, "Bagram was worse than Guantanamo," says New York-based attorney Tina Foster, who has argued several cases on behalf of detainee rights in US courts. "Bagram has always been a torture chamber." And what does Obama say? Nothing. He never so much as mentions Bagram in any of his speeches. When discussing America's mistreatment of detainees, he only refers to Guantanamo.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- OBAMA SUPPORTS

1. OBAMA REFUSES TO GRANT HABEAS RIGHTS TO BAGRAM DETAINEES -- IS LEAVING THE "OTHER GITMO" ALONE Karen J. Greenberg, Executive Director, Center on Law and Security, New York University School of Law, "Obama's Guantanamo? Bush's Living Legacy at Bagram Prison," TOMDISPATCH, 3-6-09, www.commondreams.org/view/2009/03/06-4, accessed 4-21-10. While I was wondering about the state of our black hole of incarceration in Afghanistan, the Obama administration issued its first terse statement on the subject. When it came to granting Bagram detainees habeas rights (that is, the right to challenge their detention in U.S. courts), the administration simply stated that it "adheres to [the Justice Department's] previously articulated position": habeas would not be granted. After all, reasoned the new government lawyers (like their predecessors), Bagram is in an indisputable war zone and different legal considerations should apply. But here's the catch neither the Bush administration, nor evidently the Obama administration, has cared to consider: It's quite possible that these four individuals, like others at Bagram, were not captured on an Afghan battlefield (as the prisoners claim), but elsewhere on what Bush officials liked to think of as the "global battlefield" of the War on Terror, and then conveniently transported to Bagram to be held indefinitely. The U.S. government refuses to make public any documentation that would support its case and the new court documents, submitted by the lawyers of the Obama Justice Department, are frustratingly blacked out just as those of the Bush era Justice Department always were. At least for the moment then, when it comes to Bagram, tactics and arguments remain unchanged from the Bush years. No wonder journalists and human rights lawyers have lately taken to referring to that prison as the "other Guantanamo," or "Guantanamo II," or more combatively, "Obama's Guantanamo." Sadly, however, even this is inaccurate. From the get-go, Guantanamo was actually the "other Bagram." The obvious question now is: How will the Obama administration deal with this facility and, in particular, with matters of detention, "enforced disappearance," and coerced testimony? Will these be allowed to continue into the future, Bush-style, or will the Obama administration extend its first executive orders on Guantanamo and torture practices to deal in new ways with the prison where it all began? 2. OBAMA ADMINISTRATION OFFICIALS ARE DRAFTING NEW RULES TO HOLD PERSONS INDEFINITELY WITHOUT CHARGE American Civil Liberties Union, "Government Must Follow Rule of Law, Says ACLU," 4-16-10, www.aclu.org/national-security/obama-administration-officials-drafting-secret-indefinite-detention-policy, accessed 4-21-10. WASHINGTON -- According to a report today in the Los Angeles Times, some Obama administration officials are in the process of drafting classified guidelines that would allow the government to indefinitely hold terrorism suspects outside of the United States without charge or trial. The policy, if adopted, would apply to future terrorism captures, and is reportedly still being debated within the administration with some officials voicing objections. The ACLU continues to call on the Obama administration to adhere to the rule of law in its handling of terrorism suspects. The following can be attributed to Laura W. Murphy, Director of the ACLU Washington Legislative Office: "The Obama administration already has a set of guidelines on how to handle terrorism suspects: it's called the Constitution, and it is deeply discouraging that the administration is having a debate on how to circumvent it. The rule of law is not optional, and we do not need an elaborate set of guidelines -- especially a secret one -- that has the function of creating loopholes to it. It is time to put an end to the assumption that the only way to keep us safe is to violate our most fundamental laws and values." The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project: "After eight years of an administration that frequently and flagrantly flouted the law in secret, we should be turning the page, not adding paragraphs to it. While enemy belligerents captured on a battlefield can be held by the military until hostilities have ceased, civilian terror suspects captured far from any battlefield must be charged as criminals. If the evidence is too flimsy or unreliable to justify a prosecution, it is certainly too flimsy and unreliable to justify detention without charge and trial." 3. ADMINISTRATION IS OPPOSING COURT ACCESS FOR BAGRAM DETAINEES LOS ANGELES TIMES, editorial, "The Bagram Difference," 9-23-09, www.latimes.com/news/opinion/editorials/la-ed-bagram23-2009sep23,0,4445075.story, accessed 4-10-09. For those who followed the debate over the legal rights of suspected terrorists at Guantanamo Bay, it might seem like a case of deja vu. This time the question is whether about 600 detainees held by the United States at Bagram air base in Afghanistan can challenge their confinement in U.S. courts. Like the Bush administration with Guantanamo, the Obama administration is opposing such access. It is appealing a federal judge's ruling allowing three Bagram prisoners to seek writs of habeas corpus.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- OBAMA SUPPORTS cont'd

4. OBAMA CONTINUES TO DEFEND INDEFINITE DETENTION IN AFGHANISTAN Jeffrey F. Addicott, Distinguished Professor of Law, St. May's University, "Efficacy of the Obama Policies to Combat Al-Qa'eda, the Taliban, and Associated Forces -- The First Year," PACE LAW REVIEW v. 30, Winter 2010, p.358. Strangely, while President Obama was unwilling for most of his first year in office to publicly and unequivocally call the conflict with al-Qa'eda a "war," his Administration early on vigorously argued before the federal district court in Al Maqaleh v. Gates that the conflict was in fact a war and that the Executive branch was entitled to detain indefinitely al-Qa'eda, Taliban, and associated enemy forces in Bagram Air Force Base, Afghanistan under the 2001 Congressional Authorization for Use of Military Force. The only interesting legal difference advanced during the first year was the Obama Administration's weak attempt to subjectively distinguish between providing "support" and "substantial support" to al-Qa'eda, the Taliban, and associated enemy forces. Predictably, this distinction rang empty with at least two federal judges. 5. OBAMA WON'T MAKE ANY MEANINGFUL CHANGES WITH BAGRAM Ben Farmer, "Afghanistan's 'Guantanamo' Poses New Prison Problem for Obama," TELEGRAPH, 1-24-09, www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/4332499/Afghanistans-Guantanamo-poses-new-prison-probl em-for-Barack-Obama.html, accessed 4-10-10. But in Afghanistan, a series of scandals in which Taliban fighters have escaped from Afghan prisons, or have bribed guards and simply walked away from captivity, have made the US military wary of handing dangerous terrorists to the allies they are fighting alongside. The case-by-case review of the 245 prisoners still held at Guantanamo will not be extended to the 600 prisoners held in indefinite US custody in Afghanistan, or the thousands more in Iraq. Barack Obama's team remains silent on its plans for Bagram, and there seems to be little likelihood of change at the prison. Joanne Mariner, a lawyer and terrorism expert at Human Rights Watch said: "Right now they are expanding it, they are building a new facility. Clearly closing it isn't on the agenda." 6. OBAMA PLANS ON DENYING HABEAS CORPUS RIGHTS TO BAGRAM DETAINEES, RESISTING THE JUDICIARY Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. On February 20, the Obama administration announced that, as to the question of whether or not detainees at Bagram would have access to habeas corpus, it again agreed with the precedents set by Bush. As opposed to Guantanamo, there would be no habeas for the prisoners in U.S. custody in Afghanistan. However, a federal judge in Washington rejected the Department of Justice's position on April 2, finding that at least some of the detainees held at Bagram do have a right to be heard. District Judge John D. Bates ruled that three of the detainees in the cases before him -- who claim to have been captured outside of Afghanistan (as many at Guantanamo in fact were) but transferred to Bagram and held there for years -- have a right to habeas relief. (As to a fourth detainee, Judge Bates found that the prisoner's Afghan citizenship tipped the scales in the opposite direction.) So, as under the Bush administration, the back-and-forth between the judiciary and the courts persists. 7. OBAMA'S OFFICIAL POLICY DENIES COURT ACCESS TO BAGRAM DETAINEES VOA NEWS, "Obama Backs Bush on Afghanistan Detainees," 2-21-09, www1.voanews.com/english/news/a-13-2009-02-21-voa4-68797217.html, accessed 4-7-10. The Obama administration says detainees at the U.S. air base in Bagram, Afghanistan cannot use U.S. courts to challenge their detention. The ruling by the U.S. Justice Department upholds the former Bush administration's policy on the issue. Attorneys representing the detainees expressed disappointment with the decision. Last year the U.S. Supreme Court ruled that prisoners at the U.S. Naval base at Guantanamo Bay, Cuba, have the right to file such court petitions because the United States has jurisdiction over that facility. But the Justice Department Friday said the 600 prisoners at the U.S. air base in Afghanistan are different because they are being held in a war zone as part of a continuing military action. Although President Obama has ordered the closure of the Guantanamo Bay detention center, his administration has continued at least one other Bush administration policy. Last week, the Obama legal team backed the state secrets privilege, urging the dismissal of a lawsuit involving allegations that the CIA flew suspects overseas to be tortured.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- SECRET FACILITIES

1. THE OBAMA ADMINISTRATION IS ACTUALLY EXPANDING SECRET PRISONS AND KIDNAPPING CIVILIANS IN AFGHANISTAN Johann Hari, "Obama's Secret Prisons in Afghanistan Endanger Us All," THE INDEPENDENT, 2-12-10, www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-obamas-secret-prisons-in-afghanistan-endanger-us-all-1896 996.html, accessed 4-7-10. Obama ran on an inspiring promise to shut down Bush's network of kidnappings and secret prisons. He said bluntly: "I do not want to hear this is a new world and we face a new kind of enemy. I know that.... but as a parent I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence." He said it made the US "less safe" because any gain in safety by Gitmo-ing one suspected jihadi -- along with dozens of innocents -- is wiped out by the huge number of young men tipped over into the vile madness of jihadism by seeing their brothers disappear into a vast military machine where they may never be heard from again. Indeed, following the failed attack in Detroit, Obama pointed out the wannabe-murderer named Guantanamo as the reason he signed up for the jihad. Yet a string of recent exposes has shown that Obama is in fact maintaining a battery of secret prisons where people are held without charge indefinitely -- and he is even expanding them. The Kabul-based journalist Anand Gopal has written a remarkable expose for The Nation magazine. His story begins in the Afghan village of Zaiwalat at 3:15am on the night of November 19th 2009. A platoon of US soldiers blasted their way into a house in search of Habib ur-Rahman, a young computer programmer and government employee who they had been told by someone, somewhere was a secret Talibanist. His two cousins came out to see what the noise was -- and they were shot to death. As the children of the house screamed, Habib was bundled into a helicopter and whisked away. He has never been seen since. His family do not know if he is alive or dead. This is not an unusual event in Afghanistan today. In this small village of 300 people, some 16 men have been "disappeared" by the US and 10 killed in night raids in the past two years. The locals believe people are simply settling old clan feuds by telling the Americans their rivals are jihadists. Habib's cousin Qarar, who works for the Afghan government, says: "I used to go on TV and argue that people should support the government and the foreigners. But I was wrong. Why should anyone do so?" 2. SECRET PRISON ABUSE CLAIMS ARE LIKELY CORRECT, DESPITE OFFICIAL DENIALS ARAB NEWS, editorial, "Abu Ghraib Again?" 4-15-10, http://arabnews.com/opinion/editorial/article43851.ece, accessed 4-16-10. Allegations assembled by the BBC that the Americans are still carrying out torture at a secret prison on Bagram Airbase in Afghanistan have been denied by the US military. Unfortunately such a protestation of innocence must bear on its shoulders the weight of the proven mistreatment of prisoners at Abu Ghraib and Guantanamo Bay. Even though large organizations like the BBC have been duped in the past, history suggests that what the former inmates of this undeclared prison told its reporters, about their mistreatment by US jailers is very probably correct. Indeed in the old prison on this air base, two Afghan suspects died in 2002 after being suspended from beams and heavily beaten by interrogators. Prisoners have since been moved to a new prison on the base called the Detention Facility in Parwan where their treatment seems hardly more humane. Visitors have seen inmates being pushed around shackled into wheel chairs, with their vision blocked by blacked-out glasses and their hearing cut off by ear defenders. This may not be torture in the classic sense but it is undignified, intimidating and humiliating to detainees, who whether guilty or innocent of any connection with the Taleban and Al-Qaeda, deserve better treatment from the country which styles itself "the Land of the Free". 3. THE U.S. WILL SIMPLY START "STASHING" SECRET PRISONERS AT BAGRAM Glenn Greenwald, "Bagram: The Sham of Closing Guantanamo," SALON, 9-16-09, www.salon.com/news/opinion/glenn_greenwald/2009/09/15/bagram/, accessed 4-21-10. Worse still, both British journalist Andy Worthington and The New Yorker's Amy Davidson highlight this rather odd and disturbing sentence from The New York Times article on the Bagram appeal: Officials say the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantanamo closed within a year. Why would the closing of Guantanamo and the shuttering of secret CIA prisons increase the "importance of Bagram" -- unless Bagram was going to replace and replicate those specific weapons, which Obama is ostensibly "ending" because they became politically unpalatable as Bush/Cheney symbols? As Davidson put it: So closing Guantanamo increases the need for a new Guantanamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantanamo because it's unfashionable -- like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida -- or because we actually don't like extrajudicial, indefinite detention? The new measures, which the Washington Post reported as well, may at least shed some light on what's been going on in Bagram; it's not likely to be pretty. If Guantanamo is, to quote the poetry of Donald Rumsfeld, a known known, Bagram is a known unknown.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- SECRET FACILITIES cont'd

4. THE U.S. IS RUNNING MANY SECRET PRISONS THROUGHOUT AFGHANISTAN DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. Well, there's a vast complex network of prisons across Afghanistan, mostly situated on US military bases. There's at least nine of them that we know about. These are small holding centers that people are taken to and interrogated. And then there's also the main prison at Bagram. In addition to that, there's even more secretive prisons, some of which we don't even know about, some of which we only have glimpses of. One is, as you mentioned, the Black Jail, which is also on Bagram and is run by US Special Forces. There's also other prisons that are on other bases, for example, Afghan army bases and Afghan police bases. 5. THE U.S. IS RUNNING SECRET PRISONS IN AFGHANISTAN Mohammed A. Salih, "US Night Raids and Secret Prisons Anger Civilians," IPS, 1-29-10, http://ipsnews.net/news.asp?idnews=50159, accessed 4-10-10. Rehmatullah Muhammad, an Afghan villager from the central-eastern Wardak Province, said he and nine other villagers were rounded up in a night raid last year and were taken to a detention facility on Rish Khor, an Afghan military base. The detention centre inside the base turned out to be run by plain-clothed Americans, although it is not clear whether they were members of the military, the Central Intelligence Agency or private contractors. From the secret facility at Rish Khor, Muhammad and his fellow villagers were sent to the U.S.-run prison at Bagram Air Base, where they did not have access to lawyers and were made to appear before a review panel. "I was only allowed to answer yes or no and not explain anything at my hearing," Muhammad told Gopal. Now, in Zaiwalat, Muhammad's small village of 300 people, the villagers are "afraid of the dark" because of what they have undergone during night raids. During the last two years, 16 people have been killed in 10 night raids just in that village. According to Gopal's sources, there is another secret prison on Bagram Air Base that has got a "notorious reputation for abusive behaviour." 6. THERE IS STILL A US-RUN "BLACK JAIL" AT BAGRAM Alissa J. Rubin, "Afghans Detail Detention in 'Black Jail' at U.S. Base," NEW YORK TIMES, 11-28-09, http://www.nytimes.com/2009/11/29/world/asia/29bagram.html, accessed 4-10-10. An American military detention camp in Afghanistan is still holding inmates, sometimes for weeks at a time, without access to the International Committee of the Red Cross, according to human rights researchers and former detainees held at the site on the Bagram Air Base. The site, known to detainees as the black jail, consists of individual windowless concrete cells, each illuminated by a single light bulb glowing 24 hours a day. In interviews, former detainees said that their only human contact was at twice-daily interrogation sessions. "The black jail was the most dangerous and fearful place," said Hamidullah, a spare-parts dealer in Kandahar who said he was detained there in June. "They don't let the I.C.R.C. officials or any other civilians see or communicate with the people they keep there. Because I did not know what time it was, I did not know when to pray." The jail's operation highlights a tension between President Obama's goal to improve detention conditions that had drawn condemnation under the Bush administration and his stated desire to give military commanders leeway to operate. While Mr. Obama signed an order to eliminate so-called black sites run by the Central Intelligence Agency in January, it did not also close this jail, which is run by military Special Operations forces. Military officials said as recently as this summer that the Afghanistan jail and another like it at the Balad Air Base in Iraq were being used to interrogate high-value detainees. And officials said recently that there were no plans to close the jails. 7. OBAMA CONTINUES TO RUN A SECRET PRISON IN AFGHANISTAN Scott Horton, "The Black Hole of Bagram," HARPERS, 12-1-09, www.harpers.org/archive/2009/12/hbc-90006166, accessed 4-21-10. Little is known about the "black jail," the infamous JSOC prison near Bagram. The Pentagon, even in the more transparent Obama era, has been rather testy about allowing human rights observers free access to any of the detention facilities at Bagram or the right to interview prisoners -- though it has invited observers to tour its new prison. Jonathan Horowitz, a consultant at the Open Society Institute who has been studying U.S. detention operations in Afghanistan, told me that, although he was unable specifically to corroborate the accounts published this weekend, several former detainees have furnished consistent descriptions of the facility. "Generally speaking," Horowitz noted, "JSOC operates with a high level of secrecy, which makes it extremely difficult to know what rules they are supposed to follow and if they are following them."
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- SECRET FACILITIES cont'd

8. U.S. AND ALLIED FORCES CONTINUE TO SEND DETAINEES TO BLACK SITES Stephen Lendman, "America's Secret Prisons," DISSIDENT VOICE, 3-17-10, http://dissidentvoice.org/2010/03/americas-secret-prisons/, accessed 4-10-10. On January 28 in TomDispatch.com, Anand Gopal headlined, "Night Raids, Hidden Detention Centers, the 'Black Jail,' and the Dogs of War in Afghanistan," recounting unreported US media stories about killings, abductions, detentions, interrogations, and torture in "a series of prisons on US military bases around the country." Bagram prison, for example, is "a facility with a notorious reputation for abusive behavior," including brutalizing torture and cold-blooded murder. Even worse is the "Black Jail," a facility consisting of individual windowless concrete cells with bright 24-hour lighting, described by one former detainee as "the most dangerous and fearful place" in which prisoners endure appalling treatment. The pattern is predictable. US/NATO convoys are attacked or reports of Taliban forces are received. Americans respond accordingly, rounding up suspects, mostly innocent civilians, and detaining them for interrogations, torture, abuse and degrading treatment -- not just in Afghanistan but in secret black sites globally, according to a January 26 UN Human Rights Council (HRC) report detailing practices engaged in by various countries including America, by far the world's worst offender in its war on terror -- one waged against humanity for unchallengeable power and total global dominance. 9. THE U.S. CONTINUES TO RUN A SEPARATE, SECRET 'BLACK JAIL' AT BAGRAM Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. According to former detainees and organizations that work with them, the US Special Forces also run a second, secret prison somewhere on Bagram Air Base that the Red Cross still does not have access to. Used primarily for interrogations, it is so feared by prisoners that they have dubbed it the "Black Jail." One day two years ago, US forces came to get Noor Muhammad outside the town of Kajaki in the southern province of Helmand. Muhammad, a physician, was running a clinic that served all comers, including the Taliban. The soldiers raided his clinic and his home, killing five people (including two patients) and detaining both his father and him. The next day villagers found the handcuffed body of Muhammad's father, apparently killed by a gunshot. The soldiers took Muhammad to the Black Jail. "It was a tiny, narrow corridor, with lots of cells on both sides and a big steel gate and bright lights," he said. "We didn't know when it was night and when it was day." He was held in a windowless concrete room in solitary confinement. Soldiers regularly dragged him by his neck and refused him food and water. They accused him of providing medical care to the insurgents, to which he replied, "I am a doctor. It's my duty to provide care to every human being who comes to my clinic, whether they are Taliban or from the government." Eventually Muhammad was released, but he has since closed his clinic and left his home village. "I am scared of the Americans and the Taliban," he said. "I'm happy my father is dead, so he doesn't have to experience this hell." 10. THE U.S. IS RUNNING A 'BLACK PRISON' AT BAGRAM DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. A new investigation by journalist Anand Gopal reveals harrowing details about US secret prisons in Afghanistan, under both the Bush and Obama administrations. Gopal interviewed Afghans who were detained and abused at several disclosed and undisclosed sites at US and Afghan military bases across the country. He also reveals the existence of another secret prison on Bagram Air Base that even the Red Cross does not have access to. It is dubbed the Black Jail and is reportedly run by US Special Forces.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE"
1. SUPREME COURT IS UNLIKELY TO EXTEND HABEAS CORPUS RIGHTS TO BAGRAM DETAINEES LOS ANGELES TIMES, editorial, "The Bagram Difference," 9-23-09, www.latimes.com/news/opinion/editorials/la-ed-bagram23-2009sep23,0,4445075.story, accessed 4-10-09. Yet there are important differences between the two situations. It's unlikely that the U.S. Supreme Court, which ruled that prisoners held at Guantanamo had a right to habeas corpus, would extend the same right to detainees at Bagram. Guantanamo, as the court noted in a decision last year, is subject to the "de facto sovereignty" of the United States, while the Bagram site is temporarily leased from Afghanistan. Unlike Guantanamo, Bagram is located in an active war zone. Even the federal judge who ruled that some Bagram inmates could seek habeas corpus relief confined his ruling to non-Afghans, who currently number only 30, most of them Pakistanis. 2. AT BEST, DETAINEES WILL LINGER FOR YEARS WHILE THE REVIEW SYSTEM IS LITIGATED Glenn Greenwald, "Bagram: The Sham of Closing Guantanamo," SALON, 9-16-09, www.salon.com/news/opinion/glenn_greenwald/2009/09/15/bagram/, accessed 4-21-10. Back in April, when the Obama DOJ announced it would appeal the decision, I wrote at length about the Bagram issue, and yesterday, in the wake of this new filing, numerous commentators made excellent points about these shenanigans. Spencer Ackerman notes that, the day before the ruling, the administration leaked that they were creating "new procedures" for Bagram detainees which are very similar to Guantanamo's "Combatant Status Review Tribunals" -- the very Bush/Cheney system the Boumediene court rejected as unconstitutional. This means that, at best, the Bagram detainees will now languish in prison for still more years with no habeas review while the Obama DOJ spends years litigating whether its "new system" is a sufficient Constitutional replacement for habeas review. Ackerman quotes David Remes, the legal director of the non-profit Appeal for Justice law firm who represents 19 Guantanamo detainees, as saying: "It's another stall. And one I would have expected from the Bush administration but not the Obama administration." 3. APPEALS COURT JUDGES SEEMED TO SUPPORT THE GOVERNMENT IN ORAL ARGUMENT -- THINK A PRO-ACCESS RULING IN THE BAGRAM CASE WILL APPLY TO DETAINEES AROUND THE WORLD AGENCE FRANCE PRESSE, "Rights of Hundreds at Bagram Prison Still Denied," 1-8-10, www.commondreams.org/headline/2010/01/08-1, accessed 4-21-10. A US appeals court has appeared reluctant to grant detainees at the Bagram prison in Afghanistan the same rights given in 2008 to prisoners in Guantanamo to be able to challenge their detention in US civilian courts. [Watchtowers sit along the perimeter of Bagram prison, north of Kabul. (AFP/File/Massoud Hossaini)] Watchtowers sit along the perimeter of Bagram prison, north of Kabul. (AFP/File/Massoud Hossaini) Judges here were wary of extending three detainees such rights at the military prison at the Bagram Air Base north of Kabul, indicating such a ruling could lead to other prisoners held oversees by the United States to seek redress in federal court. In April last year, US District Judge John Bates recognized the right of the detainees, held at Bagram without charge for at least six years, to challenge their detention in the United States, according to their lawyers. He based the ruling on the landmark Supreme Court move in 2008 to allow such rights to prisoners held at the US naval base at Guantanamo Bay, Cuba. "These detainees have been denied a due process," insisted attorney Tina Foster on Thursday. The three appeals court judges however expressed concern that an approval of Bates' ruling would open the door to more than 670 prisoners currently held at Bagram, and serve as precedent for other people detained in US military bases around the world. 4. THE OBAMA ADMINISTRATION HAS APPEALED THE DISTRICT COURT RULING Dawinder Sidhu, attorney, "Obama's Looming Legal Trap in Afghanistan," SALON, 4-6-10, www.salon.com/news/feature/2010/04/06/bagram_guantanamo_habeas_corpus/index.html, accessed 4-21-10. In 2009, a federal district court issued an initial opinion in al Maqaleh. The court, guided by Boumediene, determined that habeas exists for foreign detainees in Bagram because "the United States appears to have near-total operational control at Bagram." Several factors support the court's conclusion. For example, under the express terms of a lease agreement between Afghanistan and the United States, Afghanistan consigned the land and facilities at Bagram for the "exclusive, peaceable, undisturbed and uninterrupted" use by the United States. The lease expires only when the United States deems that "the premises are no longer required for its use." The government has appealed, arguing that the district court got it wrong. The United States does not possess sufficient control over Bagram, according to the Obama administration, because the American presence in Bagram is "limited" in duration and because any American operational control over the base is "constrained" by considerations of Afghan sovereignty and by the fact that other coalition forces are able to use the facility.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BATES/SUPREME COURT WILL SOLVE" cont'd
5. THE BATES RULING DOES NOT GO FAR ENOUGH, HAS BEEN APPEALED Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. On April 2, 2009, a U.S. federal judge ruled that three detenus at the Bagram airbase, who were transferred there by U.S. forces after being seized in other countries, could challenge the lawfulness of their detention in U.S. courts, noting that "aside from where they are held, Bagram detainees are no different than Guantanamo detainees." The ruling is not wide enough and leaves numerous questions unanswered -- not the least of which is: what will happen to the detenus who were initially detained in Afghanistan? Nonetheless, it was a positive step by a federal judge towards ensuring the rule of law at Bagram and against the position developed by the Bush administration and adopted by its successor. However, the Obama administration decided to appeal against this ruling. Given that detenus at Bagram do not have access to a system of effective judicial review in Afghanistan, the administration's appeal essentially means that, like its predecessor, it seeks to deny detenus held by the U.S. outside its territory or Guantanamo any effective means to challenge the lawfulness of their detention. This will amount to continuing the arbitrary nature of the detentions in violation of international human rights law. 6. THE BATES RULING IS NARROW, DOES NOT APPLY TO PERSONS CAPTURED IN AFGHANISTAN Charlie Savage, "Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus," NEW YORK TIMES, 4-2-09, www.nytimes.com/2009/04/03/washington/03bagram.html?ref=global-home, accessed 4-7-10. Judge Bates emphasized that his ruling was "quite narrow." He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture. "It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war," the judge wrote. "It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach." 7. FUTURE RULINGS WILL BE NEEDED TO EXPAND THE DOOR THAT BATES OPENED Daphne Eviatar, "Bagram Ruling Portends More Challenges to Obama Detention Policy in Afghanistan," WASHINGTON INDEPENDENT, 4-2-09, http://washingtonindependent.com/37119/bagram-ruling-portends-more-challenges-to-obama-detention-policy-in-afghanistan, accessed 4-21-10. Although Bates' ruling was limited to the detainees in the case before him, it opens the door to lawsuits from hundreds more prisoners at Bagram who are awaiting the opportunity to challenge their indefinite detention. "It shows that the courts are not going to take cosmetic rhetoric as a substitute for a legal basis for detention," said Tina Foster, executive director of the International Justice Network, which has been representing all of the Bagram detainees in federal court. "The rhetoric that we're in a war on terror and that Afghanistan is in the middle of a war zone doesn't change the fact that the U.S. government brought people who had nothing to do with the conflict in Afghanistan or the war on terror to be held in its custody in the middle of Afghanistan." Whether prisoners taken from their homes or elsewhere in Afghanistan and imprisoned at Bagram are also entitled to habeas corpus rights is likely to be decided in a future case -- unless the Obama administration decides to change its position. For now, the big question for Foster and her colleagues who've been pressing these cases for years is whether the Obama administration will appeal -- and further stall the prisoners' hearings. "The last administration just fought on everything," says Foster. "I don't know what the Obama administration is going to do with this ruling. Will they dig in their heels? It will be a very good indication of things to come, whether they are willing to expend the resources to argue that the president ought to have a right to take these prisoners -- who have been denied their rights for more than six years -- and lock them up forever."

STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BOUMEDIENE PRECEDENT"
1.
BOUMEDIENE DECISION'S SOVEREIGNTY STANDARD CREATES AN INCENTIVE FOR THE EXECUTIVE TO STOCKPILE DETAINEES IN AREAS WHERE THE U.S. DOES NOT EXERCISE TOTAL CONTROL Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.393-394. Courts that employ a de facto sovereignty analysis to determine the reach of the Suspension Clause will also create perverse incentives for the political branches. As shown, a minimal amount of jurisdiction retained by the host nation will render a federal court powerless to hear a detainee's habeas petition. Therefore, the United States government has a strong incentive to make strategic concessions of jurisdiction to the host nation when negotiating the terms of a military enclave in order to keep the detainees out of the judiciary's reach. As the government stakes out new offshore detention sites in the War on Terror, it is unlikely to insist on complete jurisdiction after Boumediene. Although these strategic concessions may not be as thinly veiled as the Cuban traffic law hypothetical, subtler ruses are conceivable. For example, Cuban criminal jurisdiction over detainees might at first seem like it should have displaced the Suspension Clause's application in Boumediene. But if this retained jurisdiction only applied to acts taken on the island, it should not prevent the detainees from challenging the United States' accusations regarding their conduct prior to detention. Ironically, the Boumediene Court portended its repugnance to such strategies by noting that "our basic charter cannot be contracted away like this" in rejecting de jure sovereignty as the touchstone of habeas jurisdiction. However, the de facto sovereignty test it endorsed precisely allows for this.
2.
BOUMEDIENE DECISION ONLY APPLIES TO GUANTANAMO Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.375. Do the noncitizens held at these other detention sites have this same basic opportunity to be heard? The Boumediene Court's analysis and recent scholarship suggest they do not. Although employing a "functional," multi-factor approach, the crux of the Court's analysis in Boumediene was the determination that Guantanamo Bay was a de facto sovereign of the United States. The path the Court took to this conclusion suggests that Guantanamo is the only United States de facto sovereign in the world, and thus the only candidate for an extraterritorial application of the Suspension Clause. Indeed, the traditional prerequisites of de facto sovereignty are complete jurisdiction and control -- a test that is not met by any other detention site publicly maintained by the United States military.
3.
OBAMA ADMINISTRATION IS NOW ARGUING THAT THE BOUMEDIENE DECISION DOES NOT APPLY TO BAGRAM DETAINEES Baher Azmy, Professor, Law, Seton Hall University, "Executive Detention, Boumediene, and the New Law of Habeas," IOWA LAW REVIEW v. 95, February 2010, p.482-483. The Court could have, but chose not to, expressly restrict the reach of the Suspension Clause to the arguably unique setting of Guantanamo. That decision partly reflected the Court's concern that a bright-line jurisdictional rule would invite executive "manipulation," such as locating detention operations on the other side of a jurisdictional line in order to "evade legal constraint." Currently, the jurisdictional line under consideration is the U.S. airfield in Bagram, Afghanistan, now the site of the United States' largest detention operation for "enemy combatants." Detainees filed a number of habeas cases in 2007 in the U.S. District Court for the District of Columbia on behalf of prisoners detained there, producing a recent, thoughtful district-court decision extending Boumediene's reach to a category of non-Afghani detainees transferred to Bagram from third countries. Significantly, the Obama Administration formally endorsed the position previously taken by the Bush Administration: neither the habeas statute nor the Suspension Clause permits federal courts to hear habeas petitions filed from Bagram. In its appeal of the district court's decision conferring habeas jurisdiction, the Obama Administration relied on doctrine and rhetoric eerily similar to that employed by its predecessor in defending the detention operations in Guantanamo. Indeed, Obama Administration officials have perversely defended these operations in Bagram in part on the grounds that the decision to close Guantanamo creates an urgent need for a new executive detention locale to detain indefinitely hundreds of suspected terrorists.
STATUS QUO EXT: INDEFINITE DETENTIONS NOW -- ANSWERS TO: "BOUMEDIENE PRECEDENT" cont'd
4. BOUMEDIENE PRECEDENT ONLY APPLIES TO GUANTANAMO, WHERE THE U.S. HAS DE FACTO SOVEREIGNTY Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.386. Before Boumediene, the Supreme Court confronted the extraterritorial reach of the Suspension Clause only once. In Johnson v. Eisentrager, the petitioners were a group of German citizens held at Landsberg Prison, an American Army facility in Germany. The Germans had been convicted of war crimes for engaging in hostilities against America after the surrender of Germany in World War II, and they sought a writ of habeas corpus to challenge that conviction in a United States federal court. The Eisentrager Court ruled that the petitioners had no right to habeas corpus under the Suspension Clause because Landsberg Prison was outside the sovereign United States. Thus, in order to apply the Suspension Clause to the noncitizens held at the formally Cuban territory of Guantanamo Bay, the Boumediene Court had to either overrule or substantially distinguish Eisentrager. Choosing the latter course, the Boumediene Court relied on the United States' de facto sovereignty over Guantanamo. While conceding that Cuba had de jure sovereignty over Guantanamo, the Court "[took] notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory." Thus, the current law of the land is that the Suspension Clause can apply to a de facto U.S. sovereign, and that de jure sovereignty is not the dispositive factor. 5. BOUMEDIENE DOES NOT APPLY TO BAGRAM -- SOVEREIGNTY STANDARD Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.388-389. As the above demonstrates, de facto sovereignty requires both complete jurisdiction and complete control. "Control" will almost always logically follow a showing of complete jurisdiction, but the converse is not true. For example, Bagram Air Base, the principal military base in Afghanistan, is under the control of the United States but is governed by both Afghani and United States law. So while the United States' control over Bagram may be exclusive, United States jurisdiction is not. This structure of "concurrent jurisdiction" is typical of foreign U.S. military enclaves. Because the United States generally exercises complete control over its military enclaves, future cases examining the extraterritorial reach of the Suspension Clause will likely turn on the exclusivity of United States jurisdiction. 6. BOUMEDIENE RULING IS TOO WEAK -- GOVERNMENT WILL USE THE UNIQUE STATUS OF GITMO TO SHIELD OTHER DETENTION CENTERS Bruce Corey, "At Writ's End: Using the Law of Nations to Decide Extraterritorial Reach of the Suspension Clause," THE GEORGE WASHINGTON LAW REVIEW, February 2010, p.403. This Note has attempted to show the weaknesses -- even the dangers -- of using de facto sovereignty to determine the extraterritorial reach of the Suspension Clause. The enshrinement of this approach in the habeas discourse is evident from the paucity of discussion regarding the right of the host nation to be free from interference sanctioned by a United States federal court. There have also apparently been no attempts to explain the result in Boumediene as an example of the sovereign of Cuba waiving jurisdiction over the detainees at Guantanamo Bay. However, both points are important ones to make if we truly believe that the Framers' intent has special pertinence when interpreting the Suspension Clause. More important, however, is that the rule set forth in Boumediene threatens to deprive hundreds of people at other detention sites the fundamental right to contest their charges in a forum that has a federal court's promise of fairness and impartiality. Before Boumediene was decided, many commentators in favor of extending the Suspension Clause to Guantanamo explained away the de jure sovereignty of Cuba over Guantanamo by pointing to the complete jurisdiction and control exercised by the United States. As shown above, this is how the Boumediene Court defined de facto sovereignty in the actual case. Post-Boumediene, the government will presumably rely on the fact that this jurisdictional structure is completely unique to Guantanamo in order to distinguish it from other detention sites. Thus, the unique nature of Guantanamo that was used to vindicate the rights of hundreds of people will potentially keep hundreds of others in indefinite detention.

STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- DUE PROCESS/INDEFINITE DETENTION
1.
GOVERNMENT IS USING TRIBUNALS AT BAGRAM NOW TO CIRCUMVENT HABEAS CORPUS RULINGS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. On Monday, one day after the New York Times and the Washington Post reported that the Obama administration was planning to introduce tribunals for the prisoners held in the U.S. prison at Bagram airbase, Afghanistan, the reason for the specifically-timed leaks that led to the publication of the stories became clear. The government was hoping that offering tribunals to evaluate the prisoners' status would perform a useful PR function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia (PDF), submitted yesterday, in which the government attempted to claim that "Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan." The main reason for this brazen attempt to secure a PR victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and "rendered" to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in U.S. courts. Below, I discuss the government's position regarding these men, and explain why introducing Guantanamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram's ongoing use as a secret prison for foreign suspects "rendered" from other countries.
2.
CURRENT ORDER AUTHORIZING DETENTIONS DOES NOT PROVIDE ADEQUATE DUE PROCESS PROTECTIONS Human Rights Watch, "US: Reform Afghanistan Detention Policy," 11-14-09, www.hrw.org/en/news/2009/11/13/us-reform-afghanistan-detention-policy, accessed 4-7-10. A US domestic law, the Authorization for Use of Military Force, is currently being used as the basis for the detentions on Afghan soil. It is inadequate because it fails to recognize that all persons held in Afghanistan are entitled to the legal protection of Afghan domestic law and international human rights law, regardless of whether they are in the physical control of the Afghan government or a foreign government. All detainees in Afghanistan are entitled to minimum protections, including the right to legal counsel, and to be able to challenge the legal and factual basis for the detention before an independent and impartial tribunal. The U.S. reforms still fall short of providing detainees with those rights. "President Obama has taken some steps to sort out the mess created by the Bush administration," said Rachel Reid, Afghanistan researcher for Human Rights Watch. "But the US will have a lot more credibility encouraging the Afghan government to respect the rule of law if it reforms its own detention practices."
3.
PERSONS HELD AT BAGRAM HAVE NO MEANINGFUL WAY TO CHALLENGE THEIR DETENTION Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.2. In April 2009, Human Rights First interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S. military not to be a threat to U.S., Afghan or Coalition forces. Some detainees we interviewed had been detained for five years, others from four months to two years. According to those we interviewed in April, prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers. Detainees were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- DUE PROCESS/INDEFINITE DETENTION cont'd
4. MANY AFGHANS ARE BEING HELD BY THE U.S. WITHOUT BEING ABLE TO CHALLENGE THEIR DETENTION Sahr MuhammedAlly, Senior Associate, Law and Security Program, Human Rights First, "Hidden Justice: Do Obama's Detention Reforms in Afghanistan Go Far Enough," FOREIGN POLICY, 9-18-09, http://afpak.foreignpolicy.com/posts/2009/09/18/hidden_justice_do_obama_s_detention_reforms_in_afghanistan_go_far_enough, accessed 4-7-10. The new Detainee Review Board (DRB) procedures for the approximately 600 detainees currently held in Bagram Air Base, Afghanistan, are an improvement over the existing review regime, which has resulted in prolonged and unjust detention and has been a growing source of frustration and decreased Afghan support for U.S. presence in Afghanistan. But these reforms do not address the core of U.S. detention problems that persist in Afghanistan -- problems that undercut America's counterinsurgency goals there. I went to Afghanistan earlier this year to speak to former detainees suspected of involvement with the insurgency imprisoned by U.S. forces at Bagram. What I found was troubling. Many were captured in their homes during night raids that terrorized extended families, often involving destruction of property, sometimes even death to innocent bystanders. Detainees I interviewed had been held for 9 months, 2 years, and some up to 5 years without any opportunity to review the evidence against them or to produce tribal elders or other witnesses who could vouch for their innocence and character. 5. OBAMA ADMINISTRATION IS DENYING REVIEW RIGHTS TO BAGRAM DETAINEES Catherine Herridge, "Liberals Angered By Obama's Opposition to Judicial Review for Bagram Detainees," FOXNEWS, 4-16-09, www.foxnews.com/politics/2009/04/16/liberals-angered-obamas-opposition-judicial-review-bagram-detainees/, accessed 4-21-10. President Obama signed three executive orders in January that signaled his intent to close the prison at Guantanamo Bay, fulfilling a campaign promise popular with liberals and central to his electoral victory. But three months into the detainee review, Obama finds himself the unexpected target of fresh criticism from liberals over his handling of what they consider the new Guantanamo Bay: the military detention facility at Bagram Air Base in Afghanistan. The secretive site is home to 660 detainees, 95 percent of whom were captured on the battlefield in Afghanistan. The rest were mostly captured in North Africa and the Middle East. In an editorial this week, The New York Times claimed Bagram is "the next Guantanamo" and accused the Obama administration of recycling "extravagant claims of executive power." That's because the Obama White House has sided with the Bush administration in its belief that the Bagram detainees, who are in a war zone, have no right to a court review despite a ruling last year by the Supreme Court granting Guantanamo detainees those rights. 6. MOST BAGRAM DETAINEES LACK THE RIGHT TO CHALLENGE THEIR DETENTION Daphne Eviatar, "CAP: Postpone Gitmo Close, Send Leftovers to Bagram," WASHINGTON INDEPENDENT, 11-10-09, http://washingtonindependent.com/67348/cap-postpone-gitmo-close-send-leftovers-to-bagram, accessed 4-21-10. While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue -indefinitely -- the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right. Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don't afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them. 7. U.S. IS THE ONLY COUNTRY THAT USES INDEFINITE DETENTION IN AFGHANISTAN William Fisher, "Forgotten Bagram Prisoners Turn to US Courts," TRUTHOUT, 3-5-10, www.truthout.org/forgotten-bagram-prisoners-turn-us-courts57380, accessed 4-21-10. The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody. The ACLU said, "There is growing concern that Bagram has become the new Guantanamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process." In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- GENERAL

1. OBAMA CONTINUES TO HOLD PRISONERS AT BAGRAM UNDER HORRIBLE CONDITIONS, DENIES THEIR COURT ACCESS AND OTHER DUE PROCESS RIGHTS Julien Mercille, "Bagram Prison: The New Guantanamo," VILLAGE MAGAZINE, 4-26-10, www.theormond.ie/villagemagazine/?p=435, accessed 4-26-10. When Obama came to power last year, he pledged to close the prison at Guantanamo within one year, by January 2010. Not only did he fail to do that, but he has also maintained a second similar prison in Afghanistan, at Bagram Air Base, near Kabul. Bagram prison was set up in 2002 and today it holds, without charge, about 700 detainees, by comparison with about 200 at Guantanamo. A $60 million extension is now underway to upgrade Bagram, which will enable the facility to hold up to 1,000 prisoners. US military prosecutor Stuart Couch was given access to the two US-run facilities and he found Bagram to be even worse than Guantanamo, "In my view, having visited Guantanamo several times, the Bagram facility made Guantanamo look like a nice hotel", he said. The conditions of confinement at Bagram are reportedly brutal. In 2002 two Afghan prisoners were beaten to death by US troops. An investigation by the BBC revealed that former detainees at Bagram were beaten, deprived of sleep, and threatened with dogs. Some inmates were reportedly raped with sticks or threatened with anal sex. Since Bagram prison first came into operation, none of the detainees there have been classified as 'prisoners of war' (which would have given them rights under the Geneva Conventions), but as 'enemy combatants', a legal trick giving them no rights whatsoever. The Obama administration has resisted giving detainees at Bagram the rights they are entitled to. This is best illustrated by Obama's rejection of their right of habeas corpus to challenge their detention without charge, in courts. This right was given by the US Supreme Court to inmates at Guantanamo in August 2008 in a case called Boumediene v. Bush. Since then a number of Guantanamo inmates have taken advantage of this ruling to successfully challenge their detention. Welcoming the decision, on the campaign trail against John McCain, Obama noted there was "a false choice between fighting terrorism and respecting habeas corpus". In April 2009 a US judge ruled that some of the Bagram prisoners (those who don't come from Afghanistan) also had habeas corpus rights. So how did Obama react to this important decision? Just like the Bush administration, he has opposed it: Obama doesn't want Bagram prisoners to be able to challenge their detention. His Department of Justice appealed the decision last September, noting, "Habeas rights under the US Constitution do not extend to enemy aliens detained in the active war zone at Bagram". If Obama's position prevails the US could ship detainees from, say, Thailand to Bagram, where they won't be able to challenge their detention; but if they are shipped to Guantanamo instead, they will be able to do so. So it's easy to see how Obama will be able to circumvent the law applying to Guantanamo. One needs to ask what is the point of closing Guantanamo if all of its bad features -- like indefinite detentions with no trials -- will be preserved and simply moved to Bagram? Those worries are exacerbated by the fact that Obama has announced he would continue the Bush policy of 'rendition', meaning abducting people from around the world and shipping them off to third countries with no legal process where they can be tortured without breaking US law. The danger is evident, by shipping them to Bagram they will be denied all of the rights which they would have if sent to Guantanamo. In addition to all that, it has been reported that the US military maintains a 'black site' prison at Bagram, separate from the main prison. Evidence of torture at this site was recently reported by the New York Times and Washington Post, but the US government has apparently not pursued further investigations. The administration of Bagram prison will soon be taken over by the Afghan government from the US. What does this mean for detainees? Given the many reports of arbitrary arrest, torture, and other mistreatment by Afghan security forces, the situation is not reassuring. In fact, neither the Afghan government nor US/NATO forces is notably trustworthy -- so it seems that, once again, it will be up to vociferous progressives around the world to seek action if there is to be any hope for change. 2. PERSONS DETAINED IN AFGHANISTAN ARE AFFORDED NO LEGAL RIGHTS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. But human rights advocates say that concerns about the detention process remain. The US Supreme Court ruled in 2008 that inmates at Guantanamo cannot be stripped of their right to habeus corpus, but it stopped short of making the same argument for Bagram (officials say that since it is in the midst of a war zone, US civil rights legislation does not apply). Inmates there do not have access to a lawyer, as they do in Guantanamo. Most say they have no idea why they have been detained. They do now appear before a review panel every six months, which is intended to reassess their detention, but their ability to ask questions about their situation is limited. "I was only allowed to answer yes or no and not explain anything at my hearing," said former detainee Rehmatullah Muhammad.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- GENEVA/INTERNATIONAL LAW

1. THE NEW SYSTEM DOES NOT COMPLY WITH THE GENEVA CONVENTION Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. This omission of screening on capture -- which has applied at Bagram ever since -- came about because, under instructions from the highest levels of government, the military was obliged to shelve its plans to hold competent tribunals under Article 5 of the Geneva Conventions, despite the fact that they had been pioneered by the U.S., and had been used successfully in every war from Vietnam onwards. Held close to the time and place of capture, these tribunals (as opposed to the CSRTs, which mockingly echoed them), comprise three military officers, and are designed to separate combatants from civilians seized in the fog of war, in cases where it is not obvious that prisoners are combatants (when they are not wearing a uniform, for example), by allowing the men in question to call witnesses. During the first Gulf War, around 1,200 of these tribunals were held, and in nearly three-quarters of the case, the men were found to have been wrongly detained, and were released. The failure to implement these tribunals in the "War on Terror" contributed enormously to the filling of Guantanamo with prisoners who had no connections to any form of militancy whatsoever, and these initial errors were not redressed when a skewed version of the tribunals -- the CSRT system -- was introduced two and half years later. As a result, plans to introduce Guantanamo-style tribunals to Bagram -- in which prisoners are assigned military representatives instead of lawyers, and may call witnesses and present evidence if "reasonably available" -- may be an improvement on the existing system of Unlawful Enemy Combatant Review Boards at Bagram -- in which the prisoners have no representation whatsoever, and are only allowed to make a statement before they hear the evidence against them -- but it fails to take into account the fact that non-uniformed prisoners seized in wartime, like those at Bagram, should, under the terms of the Geneva Conventions, be given competent tribunals on capture, and then, if found to be combatants, held unmolested until the end of hostilities. Despite being addressed in the DoD's new proposals, these concerns are not mitigated by the fact that, according to these plans, new prisoners will be subjected, on capture, to cursory reviews by "the capturing unit commander" and by the commander of Bagram to ascertain that they "meet the criteria for detention," and the problem is underlined by the DoD's insistence that it is not merely holding prisoners "consistent with the laws and customs of war," but also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the "War on Terror," approved by Congress within days of the 9/11 attacks), which authorized the President to detain those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001," or those who supported them. 2. BAGRAM DETAINEES ARE DENIED FUNDAMENTAL RIGHTS AGENCE FRANCE PRESSE, "Rights of Hundreds at Bagram Prison Still Denied," 1-8-10, www.commondreams.org/headline/2010/01/08-1, accessed 4-21-10. The Bagram prison has served since 2002 as a holding site for terror suspects captured outside Afghanistan and Iraq. In September, the United States granted Bagram prisoners the nominal right to challenge their detention, but not in US courts. Bates originally ruled that foreign prisoners held at Bagram should also be provided the right enshrined in the writ of habeas corpus. In responding, however, the administration has argued Bates's ruling "reverses long-standing law, imposes great practical problems, conflicts with the considered judgment of both political branches, and risks opening the federal courts to habeas claims brought by detainees held in other theaters of war during future military actions." Many of the detainees at Bagram have languished for years. But unlike prisoners at Guantanamo Bay -- where some 229 "war on terror" detainees are still held -- the Bagram inmates have had no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as "enemy combatants."
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- PRISON CONDITIONS/ABUSE

1. CONDITIONS AT BAGRAM ARE SIMPLY HORRIBLE THE EXAMINER, "Afghanistan Prison Camp Another Gitmo?" 1-28-09, www.examiner.com/x-2547-Watchdog-Politics-Examiner~y2009m1d28-Afghanistan-prison-camp-another-Gitmo, accessed 4-7-10. While the prison at Guantanamo Bay (Gitmo) prison camp makes the headlines as President Barack Obama tries to find countries that will take in those being held, another camp in Afghanistan could prove to even more of an embarrassment. Previously ignored by the American press, articles about it are appearing now. The prison in Bagram was originally a kind of a transit station, called a "screening point" in military language. Suspects arrested in Afghanistan were flown there and usually transferred quickly to Gitmo. However, late in 2004, the decision was made not to send any more prisoners to the Cuban base. At this time it is estimated that as many as 650 prisoners are being held at Bagram who, because they were arrested during the Afghanistan war zone, can be held indefinitely. Martial law applies to them. The conditions are Bagram are said to be deplorable but there can be no verification as human rights campaigners and journalists are forbidden to enter the camp. German diplomats got a brief look at the camp last year because an Afghan-born German citizen was being held there. The few people who have seen the prison said that the prisoners are held in wired cages and sanitary facilities are said to be inadequate. 2. CONDITIONS AT BAGRAM ARE FAR WORSE THAN THEY ARE AT GUANTANAMO Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. Bagram's most prominent temporary detainee to date was Khalid Sheikh Mohammed, the self-proclaimed chief architect of the Sept. 11, 2001 terrorist attacks. After his arrest in Pakistan, Mohammed was initially taken to Bagram for three days and was then held at a secret prison in Poland before being flown to Guantanamo. He told representatives of the Red Cross that he was beaten in Afghanistan, suspended from shackles attached to his hands and sexually humiliated. "I was made to lie on the floor," he said. "A tube was inserted into my anus and water poured inside." "In my view, having visited Guantanamo several times, the Bagram facility made Guantanamo look like a nice hotel," says military prosecutor Stuart Couch, who was given access to the interior of both facilities. "The men did not appear to be allowed to move around at will, they mostly sat in rows on the floor. It smelled like the "monkey house" at the zoo." From the beginning, Bagram was notorious for the brutal forms of torture employed there. Former inmates report incidents of sleep deprivation, beatings and various forms of sexual humiliation. In some cases, an interrogator would place his penis along the face of the detainee while he was being questioned. Other inmates were raped with sticks or threatened with anal sex. 3. CONDITIONS AT BAGRAM ARE EVEN WORSE THAN THOSE AT GUANTANAMO Tim Golden, "U.S. Prison Grows Beyond Capacity in Afghanistan," NEW YORK TIMES 1-7-08, http://www.nytimes.com/2008/01/07/world/asia/07iht-07bagram.9047054.html?_r=1, accessed 4-7-10. The Bagram Theater Internment Facility, as it is called, has held prisoners captured as far away as Central Africa and Southeast Asia, many of whom were sent on to Guantanamo. Since the flow of detainees to Cuba was largely shut off in September 2004, the Bagram detention center has become primarily a repository for more dangerous prisoners captured in Afghanistan. Despite some expansion and renovation, the detention center remains a crude place where most prisoners are fenced into large metal pens, military officers and former detainees have said. Military personnel who know both Bagram and Guantanamo describe the Afghan site, on an American-controlled military base 40 miles north of Kabul, as far more spartan. Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said. 4. BAGRAM IS EVEN TOUGHER AND MORE SPARTAN THAN GITMO Eric Schmitt, "Afghan Prison Poses Problem in Overhaul of Detainee Policy," NEW YORK TIMES, 1-26-09, http://www.nytimes.com/2009/01/27/washington/27bagram.html?em, accessed 4-7-10. But what may be an equally difficult problem now confronts the Obama administration in the 600 prisoners packed into a cavernous, makeshift prison on the American air base at Bagram in Afghanistan. Military personnel who know Bagram and Guantanamo describe the Afghan site as tougher and more spartan. The prisoners have fewer privileges and virtually no access to lawyers. The Bush administration never allowed journalists or human rights advocates inside. Problems have also developed with efforts to rehabilitate former jihadists, some of whom had been imprisoned at Guantanamo. Nine graduates of a Saudi program have been arrested for rejoining terrorist groups, Saudi officials said Monday.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- PRISON CONDITIONS/ABUSE cont'd

5. DETAINEES ARE HELD IN APPALLING CONDITIONS Tom Eley, "Torture Continues at US Prisons in Afghanistan, WSWS, International Committee of the Fourth International, 12-1-09, www.wsws.org/articles/2009/dec2009/afgh-d01.shtml, accessed 4-7-10. Prisoners are exposed to extreme cold and sleep deprivation. The teenage boys told the Post that when they attempted to sleep on the hard floor, US soldiers "shouted at them and hammered on their cells." Prisoners' only respite from this extreme solitary confinement are twice-a-day interrogations, during which some are beaten or humiliated. "He kept asking me, 'Tell us the truth.' I told them the truth more than 10 times," Mohammad told the Post. "That I'm a farmer, my father was a farmer, my brother was a farmer. But they said, 'No, help us with this case. Tell us the truth.' That's why he was slapping me." The prisoners are held in these conditions for weeks -- 35 to 40 days, according to the Times -- their families unaware of their fate. "For my whole family it was disastrous," said Hayatullah, a Kandahar resident who said he was working in his pharmacy when he was arrested. "Because they knew the Americans were sometimes killing people, and they thought they had killed me because for two to three months they didn't know where I was." Hamidullah, who was held five and a half months in detention, including five to six weeks in the black jail, said he heard the sounds of other detainees being tortured and abused. "They beat up other people in the black jail, but not me," he said. "But the problem was that they didn't let me sleep. There was shouting noise so you couldn't sleep." 6. THE U.S. CONTINUES TO ABUSE DETAINEES AT FACILITIES IN AFGHANISTAN Human Rights First, "U.S. Government Should Respond to Bagram Abuse Allegations," Common Dreams, 4-15-10, http://www.commondreams.org/newswire/2010/04/15-13, accessed 4-16-10. The U.S. government is obligated under international law to provide the International Committee of the Red Cross access to all detainees in U.S. custody and to treat detainees humanely. According to nine witnesses who reportedly spoke to the BBC, prisoners at a secret site on the U.S. airbase are being subjected to deliberate sleep deprivation and extreme cold. Most said they were beaten by U.S. soldiers when they were arrested, and had not been allowed to contact their families. None had been visited by the International Committee of the Red Cross. This is not the first time that such abuse allegations have surfaced. In November 2009, the Washington Post reported that teenagers arrested by U.S. authorities and held at the Bagram air base had similarly charged that they'd been beaten, sexually humiliated, deprived of sleep and held in isolation. Human Rights First subsequently requested information and an investigation from the Department of Defense, but the organization has still not received a response. 7. BAGRAM IS FARE WORSE THAN GUANTANAMO Robert Taylor, "Bagram: Obama's Gitmo, Only Worse," THE EXAMINER, 6-26-09, www.examiner.com/x-8131-Sunset-District-Libertarian-Examiner~y2009m6d25-Bagram-Obamas-Gitmo-only-worse, accessed 4-21-10. There has been plenty of justified praise for President Obama as he slowly but surely closes the Gitmo Gulag. It is by well known that the Bush Regime used this prison, as well as others, to torture men who committed the "crimes" of resisting the American desert-killing fields in Mesopotamia and having Arab names. We later learned out from Blitzkrieg Rumsfeld that these "terrorists" were actually beaten, starved, deprived of sleep, and tortured with insects in an attempt to produce a false 9/11-Iraqi link. But what about the lesser known, and even crueler, military prison in Bagram, Afghanistan? What goes on at Bagram makes Gitmo look like a day-care camp. According to a 2,000 page U.S. Army report, two prisoners were chained to the ceiling and then beaten to death. Autopsies later revealed extreme trauma to both of their legs, describing it as similar to being run over by a bus. The International Red Cross Report reported massive overcrowding, harsh conditions, threats of HIV-infection and sodomy, weeks of complete isolation, routine beatings, and stress positions (a favorite at Abu Ghraib). t went nearly unnoticed, but Obama's "Justice" Department stated that it agreed with the previous Administration that the over 600 detainees at Bagram Airfield cannot use U.S. Courts to challenge their detention, and it only took two sentences. That's it. No investigations, no hearings, no discussions. Bush's Military Commissions Act of 2006, one of the scariest pieces of legislation I've ever seen, was used to justify these indefinite imprisonments, and Obama's silence on Bagram can only mean he condones this Caesar-esque power.

STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ENEMY/UNLAWFUL COMBATANT DESIGNATION
1.
MANY BAGRAM DETAINEES ARE NOT CAPTURED IN THE WAR ZONE Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. The Bagram detention facility, by now the largest American military prison outside the United States, is not marked on any maps. In fact, its precise location, somewhere on the periphery of the giant air base northeast of the Afghan capital, is classified. It comprises two sand-colored buildings that resemble airplane hangars, surrounded by tall concrete walls and green camouflage tarps. The facility was set up in 2002 as a temporary prison on the grounds of a former Soviet air base. Today, the two buildings contain large cages, each with the capacity to hold 25 to 30 prisoners. Up to 1,000 detainees can be held at Bagram at any one time. The detainees sleep on mats, and there is one toilet behind a white curtain for each cage. A $60 million extension is expected to be completed by the end of the year. Unlike Guantanamo, Bagram is located in the middle of the Afghan war zone. But not all the inmates were captured in combat areas. Many terrorism suspects are from other countries and were transported to Bagram for interrogation after being captured. Since the military prison first came into operation, all the detainees there have been classified as "enemy combatants" rather than prisoners of war, which would make them subject to the provisions of the Geneva Convention.
2.
SURGE WILL ONLY INCREASE THE NUMBER OF DETAINEES IN AFGHANISTAN -- WE ARE EXPANDING THE PRISON AND USING DISCREDITED 'ENEMY COMBATANT' LABELS Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. The month of March heaped insult upon injury for those who had been hopeful about Obama's detention policy. The new administration announced the deployment of 4,000 more troops to Afghanistan to add to the 17,000 already newly deployed since the inauguration. With more troops -- despite assertions that many are there for civil-society-building purposes -- comes the expectation that more prisoners will be taken. Although the administration's recently released strategy for Pakistan and Afghanistan emphasizes the use of troops for nation building, there is also the directive that elements of al-Qaeda and the Taliban will have to be dismantled and, we can only assume, imprisoned. Under President Bush, plans for expanding the ability to hold prisoners in Afghanistan were adopted in the form of a $60 million expansion of Bagram's prison facilities. The Obama administration, it seems, is poised to go through with this expansion, which will double the capacity of that prison to 1,100. Similarly, on March 13, the administration, while jettisoning the discredited term "enemy combatant," did not replace it with any label other than the equally vague reference to individuals who "substantially supported" the Taliban, al-Qaeda or "associated forces." This cloudy terminology essentially seems to agree that the detainees stand legally without rights and, therefore, in a legal no-man's-land. Critics of these developments have been quite vocal, expressing dismay that the about-face they expected from the Obama administration has not taken place. "It is deeply troubling," Anthony Romero, executive director of the ACLU, responded, "that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. It is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."
3.
THE UNLAWFUL COMBATANT LABEL IS STILL BEING USED TO JUSTIFY INDEFINITE DETENTION Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. As at Guantanamo, the detainees in Bagram are held by the US military as "enemy combatants", although the authorities have recently taken to also labelling the Bagram detainees as "unlawful enemy combatants". This change has occurred during litigation since 2007 on Bagram cases, without explanation and without clarification of what definition of "unlawful enemy combatant" the military was applying. As at Guantanamo, the USA applies the notion of a global armed conflict to the Bagram detention regime, as well as pointing out the ongoing armed conflict in Afghanistan when justifying indefinite detention (see further below).
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "AFGHAN COURTS"
1. BAGRAM DETAINEES DO NOT HAVE RECOURSE TO COURTS IN AFGHANISTAN Sahr MuhammedAlly, Senior Associate Law and Security Program, Human Rights First, "Obama Must Not Allow Bagram Prison to Remain an Afghan Version of Guantanamo," JURIST, 1-17-09, http://jurist.law.pitt.edu/hotline/2009/01/obama-must-not-allow-bagram-prison-to.php, accessed 4-21-10. There is no judicial process afforded to Bagram detainees. Afghan courts are unable to exercise jurisdiction over their own, or any other country's, nationals held by the U.S. military in Afghanistan. According to U.S. government court filings, a panel of three U.S. military officers -- called an Unlawful Enemy Combatant Review Board (UECRB) -- reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. Before April 2008, detainees were not even permitted to appear before the UECRB. There is no appeal from the UECRB determination. Detainees don't question government witnesses, nor can they call their own witnesses or receive guidance from an advocate. 2. AFGHAN GOVERNMENT REFUSES TO PARTICIPATE IN HANDOFF OF INDEFINITE DETAINEES ANI, "Afghanistan's Bagram Military Prison Has Nearly Double the Inmates of Guantanamo Bay," 1-8-08, http://www.thaindian.com/newsportal/world-news/afghanistans-bagram-military-prison-has-nearly-double-the-inmates-of-guantana mo-bay_10011768.html, accessed 4-10-10. With the Afghans raising objections to US attempts to persuade them to establish a similar home-grown regime of indefinite detentions and trial by military commission already endorsed by the Bush Administration, and the Americans fearing for the security and day-to-day conditions of the proposed new facility, an agreement on how the new prison facility will be used broke down in 2006. Afghanistan's President Karzai has so far refused to sign a decree establishing a legal framework for the prisoners based on the discredited Guantanamo model. (ANI) 3. EVEN THE KARZAI GOVERNMENT REFUSES TO COOPERATE WITH OUR DETENTION EFFORTS REVOLUTION, "Bagram Prison, Afghanistan: A Brutal U.S. Torture Center," n. 177, 1-27-08, http://revcom.us/a/117/bagram-en.html, accessed 4-7-10. The U.S. has been working on a plan to transfer prisoners out of Bagram to a new prison run by the Afghan military. According to the New York Times, Bush administration officials wanted the Karzai government in Kabul -- a puppet regime created by the U.S. after the 2001 invasion -- to agree to hold the prisoners as "enemy combatants" and to adopt "a legal framework like that of Guantanamo." In other words, the prisoners could be held indefinitely, without charges and any real trials. But apparently, even Karzai did not want to be seen carrying out such blatantly unjust treatment of prisoners that violates international laws, and he reportedly refused to sign a decree, written under U.S. direction, that authorized such treatment.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CIA PRISON BAN SOLVES"
1. THE NEW DETENTION RULES HAVE BACKFIRED, SHIFTING CONTROL TO THE SPECIAL FORCES AND SECRET PRISONS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. The American troops that operate under NATO command have begun to enforce stricter rules of engagement: they may now officially hold detainees for only ninety-six hours before transferring them to the Afghan authorities or freeing them, and Afghan forces must take the lead in house searches. American soldiers, when questioned, bristle at these restrictions -- and have ways of circumventing them. "Sometimes we detain people, then, when the ninety-six hours are up, we transfer them to the Afghans," said one marine who spoke on the condition of anonymity. "They rough them up a bit for us and then send them back to us for another ninety-six hours. This keeps going until we get what we want." A simpler way of dancing around the rules is to call in the Special Operations Forces -- the Navy SEALs, Green Berets and others -- which are not under NATO command and thus not bound by the stricter rules of engagement. These elite troops are behind most of the night raids and detentions in the search for "high-value suspects." Military officials say in interviews that the new restrictions have not affected the number of raids and detentions at all. The actual change, however, is more subtle: the detention process has shifted almost entirely to areas and actors that can best avoid public scrutiny -- small field prisons and Special Operations Forces. 2. OBAMA HAS NOT FULFILLED HIS PROMISE TO END SECRET TORTURE PRISONS Stephen Lendman, "America's Secret Prisons," DISSIDENT VOICE, 3-17-10, http://dissidentvoice.org/2010/03/americas-secret-prisons/, accessed 4-10-10. Clear evidence shows otherwise that prisoners were subjected to cruel, inhumane, abusive and degrading treatment at US and foreign sites, contrary to Bush administration assurances and later from the equally culpable Obama administration. After promising to respect human rights and close Guantanamo and other detention facilities as expeditiously as possible, and refrain from operating new ones, it's kept them open, endorsed preventive detentions without charges, continues extraordinary renditions to black sites, and embraces torture as official US policy like the Bush administration. America's torture prisons still flourish as secretly and abusively as under George Bush despite promises of more humane practices, quickly broken to pursue America's imperial agenda for unchallengeable power and total global dominance.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS"
1. DESPITE REFORMS, THE REVIEW PROCEDURES ARE STILL INADEQUATE -- USE OF CLASSIFIED EVIDENCE, FALSE INFORMATION, LACK OF PERSONNEL, LACK OF TRANSLATION Jonathan Horowitz, Open Society Institute, "New Detenion Rules Show Promise and Problems," HUFFINGTONPOST, 4-20-10, http://blog.soros.org/2010/04/new-detention-rules-show-promise-and-problems/, accessed 4-21-10. However, there are reasons for concern. Serious problems continue to damage the credibility of the new system. For example, that detainees are not allowed to review classified information seriously jeopardizes the accuracy and legitimacy of the hearings. This classification procedure, though important for protecting identities of informants, makes it nearly impossible for the detainee to effectively challenge the veracity of the allegations. To solve this problem, the U.S. military and intelligence agencies need to end their culture of over-classification and give greater priority to improving their evidence gathering capacity, as opposed to their intelligence gathering capacity. Without a shift from reliance on secret sources to greater transparency, U.S. detention operations and its detainee review system are doomed. This is not unprecedented; International Security Assistance Forces (ISAF) soldiers, who send their detainees to Afghan authorities, have been given orders to improve evidence collection for Afghan criminal prosecutions. The U.S. also needs to review its intelligence sources and eliminate those who repeatedly provide false and inaccurate information. One of the biggest complaints Afghans have of the U.S. detention policy is that informants aren't held accountable. In the highly publicized botched night raid by U.S. Special Operations Forces that killed civilians in February, the Christian Science Monitor reported the family as saying, "We want that spy who gave the false information to the Americans...I don't want the spy for myself, I want him to face justice or be handed over to the commander of the [Afghan army] corps." The DRBs also need more staff, especially personal representatives. If not supplemented, personnel will quickly burn-out and this will severely damage the quality of the DRBs. Currently, there are only eight representatives responsible for reviewing evidence, gathering witnesses, and conducting meetings for 800 detainees. Also of grave concern is the lack of adequate translation services during DRB proceedings. In the cases I observed, the interpreter at times did not provide a full translation of comments by detainees, witnesses, panel members, personal representatives, or the recorder. Inadequate interpreters should not be allowed to influence a process that determines a person's liberty. Since the DRBs are audio recorded, it would be beneficial for an independent expert to review the tapes and assess the quality of the DRB interpreters. More broadly, U.S. military should conduct a complete review of its Dari and Pashtu interpreters. 2. THE NEW BAGRAM TRIBUNALS ARE MERE SHOW TRIALS, RUN COUNTER TO SUPREME COURT STANDARDS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. Reinforcing its hopes that offering tribunals to the prisoners would deflect attention from its desire to keep holding "rendered" prisoners at Bagram indefinitely, the government included an Addendum with its brief on Monday, outlining its plans for the new tribunal system. This is designed to replace an existing review system, which, in the words of Judge Bates, "falls well short of what the Supreme Court found inadequate at Guantanamo" in Boumediene, being both "inadequate" and "more error-prone" than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals (CSRTs) that was established at Guantanamo to review the prisoners' cases. Reporters have been quick to spot that the new review system -- far from providing an adequate system that would, presumably, satisfy the Supreme Court -- is, in fact, little more than a carbon-copy of the CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on them, who explained, in a series of explosive statements in 2007, that they were designed primarily to rubberstamp the administration's insistence that the men were "enemy combatants," even though they had not been adequately screened on capture. 3. MILITARY COMMISSIONS CANNOT DELIVER FAIR AND RELIABLE JUSTICE American Civil Liberties Union, "Discredited Military Commissions Resume Despite Persistent Flaws," 4-27-10, www.aclu.org/national-security/discredited-military-commissions-resume-despite-persistent-flaws, accessed 4-27-10. The Khadr proceedings will take place as the administration considers the possible use of the military commissions for the prisoners accused of involvement in the 9/11 attacks. In November, Attorney General Eric Holder announced that the U.S. would use the federal criminal courts to prosecute the 9/11 suspects. However, after political pressure from inside and outside Congress, the administration has indicated it might change course and try the 9/11 suspects in the military commissions instead. The ACLU strongly believes that the appropriate place to try all terrorism cases is in federal criminal court and that the military commissions are unable to deliver reliable justice and fair trials and should be shut down for good. 4. LACK OF OUTSIDE ACCESS WEAKENS THE REVIEW BOARDS Jonathan Horowitz, Open Society Institute, "New Detenion Rules Show Promise and Problems," HUFFINGTONPOST, 4-20-10, http://blog.soros.org/2010/04/new-detention-rules-show-promise-and-problems/, accessed 4-21-10. As the U.S. moves forward in its various efforts to change the way it conducts detention operations in Afghanistan, it remains unwilling to allow defense lawyers into the DRBs, put non-military personnel on the review panel, or permit detainees to see classified evidence. All weaken the ability of the military to accurately determine who it should detainee and who it should set free.
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "CURRENT REVIEW PANELS/REFORMS" cont'd
5. THE NEW REVIEW BOARDS WILL NOT BE FAIR, ARE TOO SIMILAR TO THE DISCREDITED GITMO PROCEDURES Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.2. Under the newly announced DRB procedures, detainees will have improved notification procedures, the ability to attend the hearings, call witnesses that are "reasonably available" and question government witnesses, and have a personal representative to assist them during the proceedings. If properly implemented, these procedures will certainly be an improvement over the quality of process afforded to Bagram detainees under the previous Unlawful Enemy Combatant Review Board (UECRB) procedures. On the other hand, similarities between the DRBs and the discredited Combatant Status Review Tribunals (CSRTs) in Guantanamo are cause for concern. Specific problems with the CSRTs that may also arise in the DRBs involve enforcement of detainees' entitlement to exculpatory information and their ability to review and challenge the evidence against them and produce their own evidence, including witnesses, all in the absence of entitlement to legal representation or independent review of their detention. It thus remains to be seen whether these new procedures go far enough to protect against arbitrary detention while also creating a sound evidentiary basis for fair prosecutions. 6. THE CURRENT STATUS REVIEW PROCESS IS A SHAM Eric Schmitt, "Afghan Prison Poses Problem in Overhaul of Detainee Policy," NEW YORK TIMES, 1-26-09, http://www.nytimes.com/2009/01/27/washington/27bagram.html?em, accessed 4-7-10. Human rights advocates are already pressing the administration to revamp the review process for releasing or transferring the Bagram detainees, all but about 30 of whom are Afghans. This process, which the military calls "unlawful enemy combatant review boards," involves reviews of the status of each prisoner every six months. Human rights lawyers criticize the process as a sham and have called for a return to the longstanding battlefield reviews called for by the Geneva Conventions. More broadly, Mr. Obama's move away from the Bush administration's aggressive detention policies will have to be reconciled with his plans to increase combat operations in Afghanistan, a step that will almost inevitably generate new waves of detainees. 7. CURRENT PROCESS REFORMS ARE INADEQUATE -- ONLY MODESTLY IMPROVE A TERRIBLE SYSTEM Joshua Partlow, "U.S. Gives Tour of New Afghan Detention Center," WASHINGTONPOST, 11-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/11/15/AR2009111501877.html, accessed 4-7-10. Human rights groups said these measures still do not provide fair treatment for detainees. A joint statement from Human Rights Watch, Amnesty International and Human Rights First said detainees should be given lawyers and allowed to defend themselves in front of an independent and impartial tribunal. They also said that the Afghan Independent Human Rights Commission should have access to the detainees. Currently only the International Committee of the Red Cross, whose findings are confidential, can visit them. "This tour is one step in what we hope will be many more steps in U.S. detention reform. What's paramount are the due process concerns," said Jonathan Horowitz, a human rights expert with the Open Society Institute, who visited the facility Sunday. "You can't grade human rights on a curve. And if the previous administration set such a low bar, it's not hard to make it better, but what's needed is to make it good."
STATUS QUO EXT: RIGHTS VIOLATIONS NOW -- ANSWERS TO: "OBAMA FIXED IT"
1. OBAMA'S ADMINISTRATION HAS DONE VERY LITTLE TO IMPROVE THE LOT OF DETAINEES Johann Hari, "Obama's Secret Prisons in Afghanistan Endanger Us All," THE INDEPENDENT, 2-12-10, www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-obamas-secret-prisons-in-afghanistan-endanger-us-all-1896 996.html, accessed 4-7-10. The Obama administration is appealing against US court rulings insisting the detainees have the right to make a legal case against their arbitrary imprisonment. And the White House is insisting they can forcibly snatch anyone they suspect from anywhere in the world -- with no legal process -- and take them there. Yes: Obama is fighting for the principles behind Guantanamo Bay. The frenzied debate about whether the actual camp in Cuba is closed is a distraction, since he is proposing to simply relocate it to less sunny climes. Once you vanish into this system, you have no way to get yourself out. The New York lawyer Tina Foster represents three men who were kidnapped by US forces in Thailand, Pakistan and Dubai and bundled to Bagram, where they have been held without charge for seven years now. She tells me there have been "shockingly few improvements" under Obama. "The Bush administration rubbed our faces in it, while Obama's much smoother. But the reality is still indefinite detention without charge for people who are judged guilty simply by association. It's contrary to everything we stand for as a country... I know there are children [in there] from personal experience. I have interviewed dozens of children who were detained in Bagram, some as young as 10." 2. THE OBAMA ADMINISTRATION IS SIMPLY COVERING UP PAST ATROCITIES, LEAVING THE POLICIES IN PLACE Joe Kishore, "Torture and the American Ruling Class," WSWS, International Committee of the Fourth International, 3-19-09, www.wsws.org/articles/2009/mar2009/pers-m19.shtml, accessed 4-7-10. From the beginning, the Democratic Party has played the role of accomplice. Leading Democratic Party officials were informed of the torture program as well as the destruction of evidence. Along with the mass media, the Democratic Party has worked systematically to ignore revelations of the crimes, or, when this has not been possible, to bury them quickly. Everything has been done to keep the American people in the dark about what exactly has taken place. This cover-up continues today. The revelations regarding the ICRC report have once again received scant attention in the media. Far from bringing those responsible to account, the Obama administration has pledged to "look forward" rather than rehash old controversies. It has backed immunity for those who penned the torture memos and has taken up the "state secrets" argument to quash lawsuits into the use of extraordinary rendition and domestic spying. The essential elements of policy are preserved. Most recently, Obama decided to cease using the term "enemy combatant," while maintaining the ability of the government to hold prisoners in the "war on terror" indefinitely, without charge. The Wall Street Journal notes approvingly in an editorial on Wednesday that Obama "lambasts his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact." Among the policies preserved, the Journal cites "interrogation, surveillance, rendition, state secrets, now detention." The continuity of the policy and the complete lack of any accountability demonstrate that what is involved is not simply the actions of one individual or one administration, but tendencies deeply rooted in the decay of American capitalism. The erosion of fundamental democratic rights has closely paralleled the extreme growth of inequality and the explosion of militarist violence. As he continues Bush's policies on detention and torture, Obama has also continued the multi-trillion-dollar handouts to the banks and the prosecution of war in Iraq and Afghanistan. The anti-democratic measures of the US government will ultimately be directed at any opposition that emerges to these policies of the financial elite. The resort to the most blatantly criminal and barbaric practices is symptomatic of a ruling class that has completely outlived itself, a dead weight upon the future development of mankind.
STABILITY ADV EXT: DETENTION SPURS INSTABILITY -- INSURGENCY/AFGHAN SOVEREIGNTY

1. MISTREATMENT OF DETAINEES ONLY FUELS THE INSURGENCY Ben Farmer, "Afghanistan's 'Guantanamo' Poses New Prison Problem for Obama," TELEGRAPH, 1-24-09, www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/4332499/Afghanistans-Guantanamo-poses-new-prison-probl em-for-Barack-Obama.html, accessed 4-10-10. One of the most powerful arguments against the shadowy network of military prisons is that they have outraged Afghans and fuelled the insurgency. Dr Ghairat Baheer was a former Mujahideen leader who was arrested in 2002 because he is related to Gulbuddin Hekmatyar, a notorious warlord whose men have killed dozens of American soldiers. He was always anti-Taliban, but he condemned the US invasion of his homeland and was then arrested by CIA agents at his home in Pakistan and was shipped to Afghanistan. There, in the notorious "Dark Prison", he claims he was held in a cell just two metres by two and a half, completely without light. He said: "There were loudspeakers which played horrifying music 24 hours a day, and sounds of people shouting. I was hooked to the wall by handcuffs, with my feet shackled, and stripped naked. I was there for six months. But I didn't know where I was." Dr Baheer's ordeal lasted for years as he was shifted from one Afghan prison to another. Sometimes he was denied food; and ins some facilities he was held in cells with al-Qaeda terrorists. He said of one prison: "It was an enemy factory, creating future insurgents from the detainees and their large families." A Western diplomat in Kabul agreed. He said: "His treatment is an example of how we helped create the insurgency. He should not have been arrested at all. They (the Americans) thought arresting him would help them get to Hekmatyar." 2. PRISONER ABUSE UNDERMINES U.S. EFFORTS TO STABILIZE AFGHANISTAN Human Rights First, "U.S. Government Should Respond to Bagram Abuse Allegations," Common Dreams, 4-15-10, http://www.commondreams.org/newswire/2010/04/15-13, accessed 4-16-10. Human Rights First today called on the U.S. government to answer new allegations that Afghan prisoners are being abused in a "secret jail" at the U.S.-run Bagram airbase. In a letter to Vice-Admiral Robert S. Harward, Joint Task Force Commander in Afghanistan, Human Rights First pressed for answers to mounting allegations of abuse, including a BBC report issued today that claims nine witnesses have confirmed such abuse. To date, the U.S. government has consistently failed to respond to these serious accusations. "In addition to being reprehensible, abuse of prisoners in Afghanistan would also directly undermine U.S. strategic interests there, which depend upon the support and cooperation of the Afghan people and their government," said Human Rights First's Daphne Eviatar. "But beyond that, these latest reports, if true, suggest that the U.S. may also be in violation of its legal obligations to treat detainees humanely." 3. U.S. PRISONS IN AFGHANISTAN VIOLATE AFGHAN SOVEREIGNTY Feraidoon Khwazoon, "US Military Unveils New Prison in Afghanistan," ANTIWAR, 11-28-09, http://original.antiwar.com/feraidoon-khwazoon/2009/11/27/us-military-unveils-new-prison-in-afghanistan/, accessed 4-10-10. But some legal analysts say that a foreign power building a prison on Afghan soil to hold Afghans without charge is in fact illegal. Nasrullah Stanikzai, professor of law at Kabul University, says that according to Afghan and international law, the right to hold citizens against their will belongs solely to a nation's government. He described the act of building such a prison on Afghan soil without being subject to Afghan laws as a revocation of Afghanistan's independence. "Article Two of Afghan prison law says that building prisons and incarcerating citizens can only be done with the approval of the attorney general and the high court," said Stanikzai. "Additionally, only the Ministry of Justice is authorized to arrest and detain individuals. This prison," he adds, "is illegal." Meer Ahmad Juyehdah, a member of parliament, echoes this sentiment. "It is the government's duty to deal with enemies of the state and criminals." He says that the fact such prisons exist lead Afghans to question just who is in charge in this country. Despite these protests, the new facility should be an improvement over the old.
STABILITY ADV EXT: DETENTION SPURS INSTABILITY -- PUBLIC RESENTMENT/SUPPORT

1. CURRENT DETENTION POLICY SPURS SERIOUS RESENTMENT FROM THE AFGHAN POPULATION Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. The USA's detention of Afghans and non-Afghans in Afghanistan without a proper legal framework or accountability has fostered significant popular resentment in Afghanistan. Afghan President Hamid Karzai, as well as the country's Independent Human Rights Commission (AIHRC), have repeatedly called for, and failed to obtain, access to at least monitor conditions at US detention facilities. Under the Afghanistan Constitution, the AIHRC has the right to monitor the human rights situation in Afghanistan and investigate violations. Nevertheless, the AIHRC has not had access to the Bagram detainees because it rejected the conditions being placed on it by the US authorities -- including that it should be accompanied at all times by US military officials. 2. PERCEPTIONS OF ABUSE AND ARBITRARY DETENTION UNDERMINE PUBLIC SUPPORT FOR THE MILITARY EFFORT Sahr MuhammedAlly, Senior Associate, Law and Security Program, Human Rights First, "Hidden Justice: Do Obama's Detenion Reforms in Afghanistan Go Far Enough," FOREIGN POLICY, 9-18-09, http://afpak.foreignpolicy.com/posts/2009/09/18/hidden_justice_do_obama_s_detention_reforms_in_afghanistan_go_far_enough, accessed 4-7-10. The United States has paid a high price for these and other mistakes in Afghanistan. Civilian casualties, arbitrary detention, mistaken captures, ill-treatment and intrusive house searches have led to decreasing Afghan support of the U.S. mission. A 2009 ABC News poll found that only 37% of Afghans say they support Western forces, down from 67% in 2006, citing unjust U.S. military practices as reasons. 3. ARBITRARY DETENTION AND RAIDS UNDERMINE AFGHAN SUPPORT FOR THE COUNTERINSURGENCY OPERATIONS Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.1. The emphasis on security for the Afghan population is essential to build and maintain support for American military presence and to marginalize support for insurgents. A 2009 ABC News poll found that only 37 percent of Afghans say they support Western forces, down from 67 percent in 2006. The poll data is consistent with the conversations Human Rights First had with former prisoners detained by the U.S. military in Afghanistan at Bagram Air Base, Afghan civilians, and government officials. Those we interviewed, although not supportive of the Taliban or other insurgent groups, repeatedly cited as reasons for the decline in support civilian casualties, arbitrary detention and illtreatment, intrusive house searches, the use of dogs against villagers, failure to admit and compensate for losses resulting from personal and property damage as well as from wrongful detention, and cultural insensitivities. Such conduct undermines the cooperation of civilians with the Afghan government and international troops and sends a message that foreign troops are at war with, rather than assisting, the Afghan people. 4. U.S. POLICIES ANGER THE AFGHAN PUBLIC Greg Jaffe and Julie Tate, "A Jail in Bagram, a Detainee Protest," WASHINGTON POST, 7-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071503156.html, accessed 4-21-10. The indefinite detention of Afghan prisoners also has been a source of anger among Afghan citizens, human rights advocates say. "U.S. detention policy is destroying the trust and confidence that many Afghans had in U.S. forces when they first arrived in the country," said Jonathan Horowitz, a consultant at the Open Society Institute, which seeks to promote democracy around the world. Horowitz is in Afghanistan interviewing the relatives of Bagram detainees, as well as former Bagram prisoners.
STABILITY ADV EXT: DETENTION SPURS INSTABILITY -- PUBLIC RESENTMENT/SUPPORT cont'd

5. U.S. DETENTION POLICY CAUSES CONSIDERABLE PUBLIC RESENTMENT Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. The U.S. detention of Afghans and non-Afghans in Afghanistan without a proper legal framework or accountability has fostered significant popular resentment in Afghanistan. Afghan President Hamid Karzai, as well as the country's Independent Human Rights Commission (AIHRC), have repeatedly called for and failed to obtain access to, or at least monitor conditions at, U.S. detention facilities. Under the Afghanistan Constitution, the AIHRC has the right to monitor the human rights situation in Afghanistan and investigate violations. Nevertheless, the AIHRC has not had access to the Bagram detenus because it rejected the conditions placed on it by the U.S. authorities -- including that its officials be accompanied at all times by U.S. military officials. The International Committee of the Red Cross (ICRC) is the only international organisation that has been granted access to detenus held at Bagram. Over the years, it has not had access to all detenus in U.S. custody there or elsewhere in Afghanistan. The organisation maintains a general policy of confidentiality, but has repeatedly revealed its concerns about the lack of resolution of the legal status of the Bagram detenus, and the distress that indefinite detention causes to detenus and their families. In 2008, after prolonged negotiation between the ICRC and the U.S. authorities, programmes of family visits and telephone contact were set up 6. DETENTION POLICIES ARE PART OF AN IMPERIAL CAMPAIGN TO TERRORIZE THE AFGHAN POPULATION Tom Eley, "Torture Continues at US Prisons in Afghanistan, WSWS, International Committee of the Fourth International, 12-1-09, www.wsws.org/articles/2009/dec2009/afgh-d01.shtml, accessed 4-7-10. Bagram, which reputedly holds an estimated 700 inmates, is a hated symbol of US imperialism to Afghans -- so much that the Obama administration has announced its intention to end its use as a prison. Prisoners at Bagram are denied access to legal assistance or the right to know the charges and evidence against them. There have been many reports of torture there, among them at least two cases in which prisoners were brutally beaten to death by US soldiers; one of these cases is memorialized by the documentary Taxi to the Dark Side. The revelations of torture and illegal detention continuing under Obama give the lie to his claim that the war in Afghanistan is about "protecting the American people" and "fighting terrorism." Washington aims to subjugate Afghanistan in order to place the US military close to the region's oil and gas reserves and to head off the growing influence of other powers in the region. It is acutely aware that defeat and withdrawal would spell a drastic weakening of its global position. These predatory aims require the US military to terrorize and intimidate the entire Afghan population. It is notable that those prisoners interviewed by the Times and the Post were ordinary Afghans -- a wood carver, a farmer, a sheep herder, a pharmacist, a retired teacher, and a used parts dealer -- all of whom denied any involvement with the Taliban.
STABILITY ADV EXT: RAIDS SPUR INSTABILITY -- RESENTMENT

1. NIGHT RAIDS ARE DEEPLY UNPOPULAR, ANGER THE AFGHAN POPULATION DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. Night raids are US military operations, usually done by Special Forces, that happen at night. They occur when US forces enter people's homes in the middle of the night, often to find suspects or to look for weapons. Very often, they'll take people away, and sometimes they even end up killing civilians in the process. And one thing I found going throughout the country and interviewing people is that these night raids, which aren't really talked about outside of Afghanistan, the night raids are the most unpopular actions of coalition forces, more so than air strikes that kill civilians. They're seen as a major affront to local culture, to the extent where people are actually scared in many places to actually go to sleep at night, because they don't know who will burst through the door at night and take away their loved ones. 2. SECRET ARRESTS ARE ALIENATING THE PASHTUNS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. In the past few years Pashtun villagers in Afghanistan's rugged heartland have begun to lose faith in the American project. Many of them can point to the precise moment of this transformation, and it usually took place in the dead of night, when most of the country was fast asleep. In its attempt to stamp out the growing Taliban insurgency and Al Qaeda, the US military has been arresting suspects and sending them to one of a number of secret detention areas on military bases, often on the slightest suspicion and without the knowledge of their families. These night raids have become even more feared and hated in Afghanistan than coalition airstrikes. The raids and detentions, little known or understood outside the Pashtun villages, have been turning Afghans against the very forces many of them greeted as liberators just a few years ago. 3. RAIDS AND DETENTIONS GENERATE SUBSTANTIAL RESENTMENT AGAINST AMERICAN FORCES Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/doc/20100215/gopal, accessed 4-7-10. If night raids and detentions are an unavoidable part of modern counterinsurgency warfare, then so is the resentment they breed. "We were all happy when the Americans first came. We thought they would bring peace and stability," said Rehmatullah Muhammad. "But now most people in my village want them to leave." A year after Muhammad was released, his nephew was detained. Two months later, some other residents of Zaiwalat were seized. It has become a predictable pattern in Muhammad's village: Taliban forces ambush American convoys as they pass through it, and then retreat into the thick fruit orchards nearby. The Americans return at night to pick up suspects. In the past two years, sixteen people have been taken and ten killed in night raids in this single village of about 300, according to villagers. In the same period, they say, the insurgents killed one local and did not take anyone hostage. 4. SECRET RAIDS AND DETENTIONS INVITE ABUSE -- LACK OF OVERSIGHT DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. Also it seems clear, and there's very strong evidence to suggest, that JSOC itself, or many of its operations, have not been bound to observe the field manual and the rules in the field manual. And the Secretary of Defense gave himself discretion when he issued that field manual to make it inapplicable to specific operations or specific units, as he saw fit. So I think that's one of the big questions that's hovering over Afghanistan right now, as well as the questions of transparency and accountability. If the Red Cross doesn't get in, if indeed these operations are classified and secret, that means that there's no reporting and there's no accountability for what goes on there. That creates an environment where abuses fester.
STABILITY ADV EXT: DETENTION SPURS TERRORISM -- GENERAL

1. BAD DETENTION CENTERS ARE "BREEDING GROUNDS" FOR TERRORISM Joshua Partlow, "U.S. Gives Tour of New Afghan Detention Center," WASHINGTONPOST, 11-16-09, www.washingtonpost.com/wp-dyn/content/article/2009/11/15/AR2009111501877.html, accessed 4-7-10. Reforming the country's detention system, particularly in the Afghan-run detention centers that house about 15,000 people, has become a priority for the Obama administration. In his war assessment earlier this year, Gen. Stanley A. McChrystal, the top U.S. commander in Afghanistan, wrote that detention centers, which hold some 2,500 al-Qaeda and Taliban fighters, are breeding grounds for terrorism, allowing insurgents to organize attacks and radicalize other prisoners. The lack of transparency of American-run detention programs led Afghans to see them as "secretive and lacking in due process," according to the assessment. "This problem can no longer be ignored," McChrystal wrote. 2. U.S. ACTIONS ACTUALLY INCREASE PUBLIC SUPPORT FOR TERROR ACTIVITIES AND GENERATE ANIMOSITY TO WARDS THE U.S. Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.652-653. The available evidence concerning the relevant communities strongly suggests that U.S. tactics in the GWOT have impeded an otherwise strong movement of attitudes against terrorism and its proponents. While consistent trends against terrorism have developed in most of the relevant communities, these trends have not seen corresponding increases in favorable attitudes toward the U.S. In fact, despite significant decreases in support for terrorism in most of the relevant communities, opinions of the U.S. and of its actions in the GWOT have also decreased markedly. Moreover, support for some groups that explicitly endorse acts of terrorism against the U.S. and its allies remains high in many of these communities. This evidence strongly suggests that these communities, themselves frequently subjected to acts of terrorism, have turned strongly against terrorism, as a general matter; yet, a corresponding increase in enmity toward the U.S. and its tactics in the GWOT have permitted significant support in these same communities for groups that advocate terror against the U.S. The strong trend of increasing animosity toward the U.S. and its tactics in the GWOT is found in numerous surveys conducted by various reliable entities. These attitudes appear to have hardened against the United States following the opening of the Guantanamo Bay prison and the revelations of abuse and torture of Muslim prisoners.
STABILITY ADV EXT: DETENTION SPURS TERRORISM -- PUBLIC SUPPORT

1. U.S. HYPOCRISY INCREASES SUPPORT FOR TERROR ACTIVITIES AGAINST IT Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.658-659. The most recent studies of Arab and Muslim attitudes confirm this disturbing dichotomy of increased antipathy for terrorism generally, but continuing support for groups like al Qaeda who are openly and notoriously committed to perpetrating terrorist attacks against Americans. While majorities in all countries studied expressed disapproval of terrorist attacks on Americans, majorities in Egypt, Morocco, Pakistan, Jordan, and the Palestinian Territories feel either "very positive," "somewhat positive," or "mixed" about Osama bin Laden. When asked how they felt about "groups in the Muslim world that attack Americans," opinion in every nation surveyed on that question was evenly divided, with no country having a majority express disapproval of groups attacking the U.S. This apparent dissonance between views on terrorism, generally, and terrorism used against the United States, specifically, correlates strongly with a dissonance that respondents in this survey see in the United States. Strong majorities in almost every nation surveyed agreed with the following statement: "The U.S. tries to promote international laws for other countries, but is hypocritical because it often does not follow these rules itself." Given the antipathy toward the U.S. and Americans and the continuing level of support for groups bent on killing Americans, it is essential that the U.S. be able to marshal strong support from American Muslims and Arabs. 2. SUPPORT FOR TERRORISM IS IN DECLINE, EXCEPT AGAINST THE U.S. AND ISRAEL Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.656. A potentially hopeful sign is that there is decreasing support in Arab and Muslim societies for suicide bombings and other forms of terrorism. There is a strong and consistent movement in Muslim communities to reject acts of terrorism. Though suicide bombings are sometimes seen as justified for use against civilians in defense of Islam, significant decreases in support for suicide bombings, by 50% or more, have been seen in Lebanon, Pakistan, Bangladesh, and Indonesia between 2002 and 2007. This would suggest that these societies are turning strongly against the use of terrorism. However, most Arabs in the countries surveyed do not share views of terrorism that coincide with definitions prevalent in the U.S. "Rather, they see such violence -- and the groups that perpetrate it -as legitimate if they are part of a strategy to counter the policies of what they see as threatening powers -- the US and Israel." Participants in The Great Divide survey determined the character of the act in question by their perception of the actor's motivation, not necessarily by the nature of the act. "Actions against Israel and the US, in particular, are frequently considered as legitimate resistance."
STABILITY ADV EXT: DETENTION SPURS TERRORISM -- RECRUITMENT

1. OUR DETENTION POLICIES ONLY HELP OUR ENEMIES -- EASE RECRUITMENT Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.590-591. I tend to think of terrorism more in terms of maybe a "swing vote." That is to say, there are some people who are confirmed terrorists, the Osama bin Ladens of the world, they are going to be terrorists regardless of what you do and all you can do is try to arrest them or stop them. There is the vast majority of us who would never resort to violence, never resort to terrorism, you don't have to worry about us. But there is a group of people in the middle: the "swing voters." These tend to be young, disgruntled men who are trying to figure out what to do with their discontent. Do they try political means to deal with it? Do they just go home and stew about it? Or, do they join the ranks of Osama bin Laden? For me, the fight against terrorism is won or lost with that swing vote. Which way does it turn? And it is not a finite group. It is a group that can expand because as resentment, as discontent build, more people join that category of the swing vote. For me the key in fighting terrorism is reducing the number of swing voters and discouraging those voters from joining the ranks of Osama bin Laden. That is a product of really two things. One is the success in encouraging cooperation in law enforcement efforts. Second, it is a matter of whether you succeed in the fight with the terrorist recruiter for the hearts and minds of these would-be terrorists, these swing votes. The Bush Administration's approach to fighting terrorism, its willingness to use torture, to use detention without trial, to use secret CIA detention facilities and the like, I think has been counter-productive in the battle for this swing vote. 2. A NEW BAGRAM/GITMO WOULD FUEL RECRUITING David S. Cloud and Julian E. Barnes, "U.S. May Expand Use of Its Prison in Afghanistan," LOS ANGELES TIMES, 3-21-10, www.latimes.com/news/nation-and-world/la-fg-afghan-prison21-2010mar21,0,1199314.story, accessed 4-10-10. Bagram remains controversial in Afghanistan because of documented cases of detainee abuse there, including two deaths, in the early months of the Afghan war. The original prison was recently replaced by a new detention facility on the U.S. base. McCrystal fears that a decision to expand Bagram could be used by extremists for propaganda purposes, as Guantanamo has been. In addition to the abuse cases, the prison has been criticized for the interrogation techniques used there and the amount of time suspects have been detained without trial. "Gen. McCrystal's singular focus is on making sure our military campaign is successful," the senior Defense official said. "Anything that potentially complicates that is something they are reluctant to embrace." 3. DETENTION AND TORTURE INCREASES RECRUITMENT AGAINST US Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.662-663. United States tactics of torture and targeting have also spurred recruitment by al Qaeda and increased violence against U.S. personnel and allies. It is widely accepted that the failure to treat Sunni and Shi'a Muslims equally in Iraq following the U.S. invasion contributed mightily to the violent insurgency that followed Saddam's overthrow. One Rand Corporation study described the failures of the Office of Reconstruction and Humanitarian Assistance and the Coalition Provisional Authority to bring Sunnis into the political process as representing "the most important challenge," which contributed to growing insurgency and violence throughout the country. This exclusion from the political process, however, was quite benign in both intent and effect from that associated with the targeting policies of detention and inhumane interrogation. Matthew Alexander, a U.S. military interrogator working in Iraq, has recently noted that "the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo." Alexander went on to note that it was "no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse." 4. DETAINEE ABUSE ONLY FUELS TERROR RECRUITMENT Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.591. First, at the level of recruitment, what the U.S. is doing is the terrorist recruiter's dream. The U.S. is reading from Osama bin Laden's playbook. If you look at the terrorist recruiting websites, which I periodically do, I don't know if that makes me a swing voter or what? Some perverse professional interest. But they highlight Guantanamo, they highlight Abu Ghraib. They highlight the abuses because they know that generates the resentment which is the key to building the next generation of terrorists. When the Bush Administration loses the moral high ground, when the Bush message is less attractive than the message of the terrorist recruiter, we are losing the fight against terrorism and that is very much what is happening.
STABILITY ADV EXT: DETENTION SPURS TERRORISM -- RECRUITMENT cont'd

5. OUR DETENTION POLICIES IN AFGHANISTAN ONLY SERVE AS RECRUITING TOOLS Johann Hari, "Obama's Secret Prisons in Afghanistan Endanger Us All," THE INDEPENDENT, 2-12-10, www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-obamas-secret-prisons-in-afghanistan-endanger-us-all-1896 996.html, accessed 4-7-10. Today, Bagram is being given a $60m expansion, allowing it to hold five times as many prisoners as Guantanamo Bay currently does. Gopal reports that the abuse is leaking out to other, more secretive sites across Afghanistan. They are so underground they are known only by the names given to them by released inmates -- the Salt Pit, the Prison of Darkness. Obama also asserts his right to hand over the prisoners to countries that commit torture, provided they give a written "assurance" they won't be "abused" -assurances that have proved worthless in the past. The British lawyer Clive Stafford Smith estimates there are 18,000 people trapped in these "legal black holes" by the US. As Obama warned in the distant days of the election campaign, these policies place us all in greater danger. Matthew Alexander, the senior interrogator in Iraq who tracked down Abu Musab al-Zarqawi, says: "I listened time and time again to captured foreign fighters cite Abu Ghraib and Guantanamo as their main reason for coming to Iraq to fight. We have lost hundreds if not thousands of American lives because of our policy." The increased risk bleeds out onto the London Underground and the nightclubs of Bali. I oppose these policies precisely because I want to be safe, and I loathe jihadism. President Obama has been tossing aside the calm jihad-draining insights of candidate Obama for a year now. Whenever Obama acts like Bush, listen carefully -- you will hear the distant, delighted chuckle of Osama bin Laden, and the needless stomp of fresh recruits heading his way.
STABILITY ADV EXT: DETENTION SPURS TERRORISM -- TERROR COOP/INTELLIGENCE

1. ABUSIVE INTERROGATION ONLY HARDENS ARAB AND MUSLIM OPINION AGAINST THE U.S., PRECLUDING VITAL COOPERATION Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.637-638. Briefly stated, our study has found that abusive interrogations and detention without charge or trial have alienated broad swaths of Arab and Muslim communities. Attitudes among Arab and Muslim populations concerning the United States and the U.S. war on terror continue to worsen, despite a declining level of support for terrorism among these same communities in the U.S. and around the world. Consequently, the U.S. has been unable to take advantage of the general disaffection among Muslims and Arabs with suicide bombings and other terrorist methods that target civilians to recruit speakers of Arabic, Farsi, Urdu, and other languages as translators and intelligence operatives. American tactics in the war on terror have created more enemies among the communities in the best position to assist the U.S. in ferreting out terrorists, and have lessened the likelihood of cooperation among people with no affinity for violence. The U.S. government has disregarded the political and diplomatic efforts that are most effective at reducing violence, while pursuing methods with a proven track record for creating alienation and increasing violence. The authors conclude that the net effect of these policies has been to render Americans less safe than we would be had such practices never been implemented. 2. ALIENATION UNDERMINES THE WAR ON TERROR -- THREE REASONS Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.661. There are three dangerous consequences that are almost certain to flow from the policies that the U.S. has pursued in the GWOT since 9/11. The first is that the U.S. has done little to help, and has most likely exacerbated its difficulties in obtaining human intelligence from Arab or Muslim sources useful in combating acts of terror, by alienating the communities who would necessarily provide the human intelligence that the U.S. needs. The second negative consequence is that the U.S. has likely swelled the ranks of those who desire to harm the U.S. and its citizens. Finally, and closely related to the second negative consequence, the U.S. has almost certainly increased levels of terrorism in the world due to its conduct in the GWOT. 3. DETENTION AND INTERROGATION ABUSES DISCOURAGE THE BEST INFORMATION SOURCES FROM COOPERATING WITH US Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.662. Of course, U.S. intelligence failures prior to the Iraq War are well known. However, these problems were exacerbated at every turn by the United States' treatment of Muslims in detention. The attitudes expressed in the many surveys cited in this article indicate a growing alienation between Arabs and Muslims on one hand, and the U.S. government on the other, caused by the belief that the U.S. was acting unfairly toward other Arabs and Muslims. This alienation necessarily decreases the willingness of people from the affected groups to cooperate in what is viewed as an unfair and biased "war" effort. This is precisely what happened in Northern Ireland, and the evidence strongly supports a similar alienation occurring due to U.S. policies in the GWOT. FBI Assistant Deputy Director Pasquale J. D'Amuro has stated unequivocally that abusive and torturous interrogation policies prevented the FBI from developing necessary "sources" of human intelligence. This is perhaps the most important negative ramification of U.S. policies in the GWOT, in that we have been prevented from working with precisely those people who are best positioned to assist in identifying and capturing the terrorists who seek to attack our nation. We have succeeded in alienating the people most likely to provide the kind of human intelligence that could prevent catastrophic attacks against the United States.
INT'L LAW ADV EXT: DETENTION UNDERMINES GENEVA CONVENTIONS

1. OBAMA ADMINISTRATION CONTINUES TO DENY BASIC RIGHTS TO PERSONS HELD AT BAGRAM Alex Harrison, "Afghanistan: 'Change' At US-Run Prison Camp?" GREEN LEFT WEEKLY n. 821, 12-9-09, http://www.greenleft.org.au/2009/821/42221, accessed 4-7-10. The "new" prison has been built to change the international perception and to give the facility a "new face". Although the face has changed, detainees remain in the same legal limbo, thanks to Obama's continuation of Bush administration policy. Detainees are still denied basic human rights. Earlier this year, US district judge John Bates ruled foreigners held in Bagram should be entitled to challenge their detention in US courts. In response to this, the Obama administration filed a memo claiming broad authority to indefinitely hold detainees under the Authorisation for Use of Military Force enacted by the Bush administration after the September 11, 2001 attacks. The Pentagon issued a revised policy guideline soon after the case that labelled detainees "unlawful enemy belligerents" rather than "unlawful enemy combatants". 2. INDEFINITE DETENTION UNDERMINES INTERNATIONAL LAW Human Rights Institute, Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners, Vaughan Lowe, Guy S. Goodwin-Gill, counsel, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 23, January 14, 2004, lexis. The interest of the Institute is to urge the Court to respect international law in interpreting the jurisdiction of the U.S. courts. International law protects individuals from prolonged arbitrary detention at the hands of a state, regardless of where the detention occurs. This guarantee applies in times of war, as well as peace. Without access to judicial authority, this fundamental right is hollow. Under international law, the U.S. courts cannot be powerless to consider the lawfulness of Petitioners' detention. This case challenges principles upon which the Institute was founded, particularly its commitment to the rule of law and international law as means of safeguarding fundamental human rights. The Institute does not frequently intervene in litigation. This case, however, is exceptional because of the basic nature of the right involved and the leadership role of the U.S. in world affairs. Friendly nations watch the U.S. with expectations based on widely accepted international law and shared legal traditions. Unfriendly nations look for an opportunity to accuse the U.S. of violating minimal standards of international law or to seize upon an American precedent to justify or obscure their own violations. 3. INDEFINITE DETENTION AND LACK OF CLASSIFICATION VIOLATES INTERNATIONAL LAW Human Rights Institute, Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners, Vaughan Lowe, Guy S. Goodwin-Gill, counsel, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 23, January 14, 2004, lexis. The jurisdiction of the U.S. courts should be interpreted so as to comply with international human rights law and international humanitarian law, which have developed and become binding on the U.S. since the Second World War. International human rights law guarantees a right against arbitrary detention, which entails a right to access judicial review, regardless of where and when the detention occurs. In times of armed conflict, international human rights law is complemented by international humanitarian law, which requires prompt classification and due process for all detained persons. Prolonged delay of classification without access to counsel or judicial review results in arbitrary detention, contrary to both humanitarian and human rights law. To find that the U.S. courts lack jurisdiction to hear Petitioners because they are detained outside U.S. borders would violate international law, invite abuse by other states, and compromise the credibility of the U.S. as a proponent of human rights and the rule of law.
INT'L LAW ADV EXT: DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY
1. U.S. POLICY ON DETENTION AT BAGRAM UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY -- MAKES US A PARIAH AGENCE FRANCE PRESSE, "Obama Draws Fire for 'Terror' Detainee Moves," 2-21-09, www.google.com/hostednews/afp/article/ALeqM5idbEF5yN4AEjDAz_xFr1EuoNxd3Q, accessed 4-10-10. In another policy declaration Friday that one detainee advocate described as "deeply disappointing," Obama backed Bush positions on prisoner rights at Bagram -- a Afghan detention facility. The ruling followed a hearing for four Bagram inmates by a US District Court in Washington last month, seeking the same rights accorded to prisoners at Guantanamo, leading to a flood of appeals in Washington courts from Guantanamo inmates challenging their detentions. US District Court judge John Bates gave the Obama administration a February 20 deadline to indicate whether it intended to "refine" the positions of the Bush administration on the Bagram detainee cases and "to provide input regarding the definition of 'enemy combatant.'" In a two-sentence statement from the Justice Department, Obama's administration said "the government adheres to its previously articulated position" ensures the facility's estimated 600 prisoners would not be able to challenge their detention in US courts. Attorneys representing the detainees reacted with dismay at the news. "The decision by the Obama administration to adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights is deeply disappointing," Barbara Olshansky, lead counsel for three of the four detainees, told AFP. 2. INDEFINITE DETENTIONS UNDERMINE RULE OF LAW AND U.S. INTERNATIONAL CREDIBILITY Carl Tobias, Williams Professor, University of Richmond School of Law, "22nd Annual Edward V. Sparer Symposium: Terrorism and the Constitution: Civil Liberties in a New America: Punishment and the War on Terrorism," UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW v. 6, May 2004, p.1147. Indefinite detentions and military tribunals undermine the rule of law at home by flouting basic constitutional protections and, globally, by eroding international law tenets. For example, the commission proceedings will limit defendants' rights in terms of what the Constitution normally guarantees for civilian trials while affording fewer safeguards than courts martial. Illustrative are the lack of provision for jury trials and the privilege against self-incrimination, lenient rules governing evidentiary burdens, proof and verdicts, and the potential to close trials. The detentions concomitantly have violated, and tribunals will undercut, major treaties to which the United States is a signatory and essential aspects of customary international law, such as due process requirements. Moreover, indefinitely detaining individuals and trying suspects in commissions resemble behavior for which America has castigated others and, thus, damage global relations by making the United States appear hypocritical. 3. SECRET DETENTION IS A SERIOUS VIOLATION OF INTERNATIONAL HUMAN RIGHTS Stephen Lendman, "America's Secret Prisons," DISSIDENT VOICE, 3-17-10, http://dissidentvoice.org/2010/03/americas-secret-prisons/, accessed 4-10-10. For purposes of HRC's report, they occur when governments authorize, consent, support or acquiesce to depriving persons of their liberty; where they're denied contact with the outside world, including legal counsel; or when states neither confirm or deny knowledge or involvement in detaining alleged terrorists or suspected collaborators. The practice is abhorrent and irreconcilable with international human rights and humanitarian law. Under no circumstances is it justified, yet America is a serial offender. As arbitrary arrests, they deny personal liberty and security. Among other international law provisions, they violate Article 1 of the International Covenant on Civil and Political Rights (ICCPR) stating: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention," and other provisions affirming fundamental international law rights. The UN's High Commissioner for Human Rights Working Group on Arbitrary Detention calls secret ones arbitrary and illegal by denying detainees information on charges against them, a prompt hearing before a judge, and right to a fair trial according to established international law principles. Secret detentions take many forms, including black sites for "High Value Detainees (HVD)," where they're physically and psychologically tortured for extended periods to extract confessions that are inadmissible in courts, according to international law. 4. DETENTION UNDERMINE RIGHTS INSTITUTIONS Benjamin Sovacool, Graduate Teaching Assistant, Religious Studies, Virginia Tech University, "Detentions, Iraq Impede the War on Terror," ROANOKE TIMES & WORLD NEWS, March 30, 2004, npg. The first consequence of refusing to charge and try suspects in the war against terror is that it weakens the importance of conventions like the United Nations declaration on human rights and the Geneva Convention. For the United States, eroding human rights protections creates the risk that American soldiers could be captured and tortured outside the protection of international norms and increases the chances that terrorist organizations could begin targeting U.S. citizens as combatants. For the world, these conventions are important international agreements that allow the global community to condemn human rights violations, such as the oppression of women in Yemen and ethnic cleansing in Rwanda and Kosovo.
INT'L LAW ADV EXT: DETENTION UNDERMINES U.S. HUMAN RIGHTS CREDIBILITY cont'd
5. U.S. DETENTION POLICIES UNDERMINE RIGHTS WORLDWIDE Irene Khan, Secretary General, Amnesty International, TORONTO STAR, May 29, 2005, p.A17. The United States occupies a place on the world stage that carries with it an inescapable responsibility to be a global leader and champion for human rights protection. Sadly, though, U.S. policies (as in Abu Ghraib) in recent years are doing precisely the opposite. When U.S. officials commit or allow torture, what does that do to global efforts to banish that age-old scourge from the planet? When the U.S. president supports jailing indefinitely hundreds of people without charge or trial, what does that mean for the wider campaign to uphold the fundamental right to liberty worldwide? 6. DETENTION POLICIES UNDERMINE U.S. HUMAN RIGHTS CREDIBILITY David Gollust, "Rice/Human Rights," VOICE OF AMERICAN NEWS, March 28, 2005, LN. Amnesty International issued a statement generally applauding Bush administration efforts for human rights worldwide. But the group said U.S. policies on democracy and human rights will be greeted with deep skepticism as long as, an Amnesty spokeswoman said, the administration continues to flout international law and blatantly disregard the Geneva conventions on the treatment of terrorism detainees. She said the United States loses its moral voice on human rights each day it continues to hold, without charge or trial, hundreds of terror suspects at the Guantanamo Bay naval base in Cuba. 7. INDEFINITE DETENTION UNDERMINES SUASION OF U.S. HUMAN RIGHTS PROMOTION EFFORTS Amnesty International USA, Guantanamo, and Beyond: The Continuing Pursuit of Unchecked Executive Power, May 13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005 The State Department's annual criticisms of the human rights records of other countries will inevitably lead to accusations of double standards and be drained of moral power as long as the USA fails to put its own house in order. Why, for example, should the Cuban authorities respond constructively to the State Department's criticism that in 2004 Cuba "did not permit independent monitoring of prison conditions by international or national human rights monitoring groups", or that members of the Cuban security forces "sometimes beat and otherwise abused" detainees and prisoners? After all, in the southeast corner of Cuba, the US government continues to operate a military detention camp in which detainees have been kept virtually incommunicado without charge or judicial review for more than three years. With international human rights monitors denied access, evidence that detainees held in the base have been subjected to torture and ill-treatment continues to mount. 8. ABUSIVE DETENTIONS ERODE OUR MORAL AUTHORITY Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.456. The answer is no. Abusive detentions are not worth it. The United States, despite some extraordinary blotches on its history (such as slavery and the Japanese internment during World War II), has retained considerable moral authority against abusive detentions. This is in part because the United States judiciary has maintained the role as a check against abusive detentions through the use of habeas corpus. Even more importantly, the United States, at least rhetorically, has remained committed to opposing abusive detentions, which has sustained its moral authority despite its checkered history. However, the recent abusive detentions in Guantanamo, Iraq, Afghanistan, and of enemy combatants within the United States are in sharp contrast to the ideals and principles of the United States. The United States' moral authority is weakened as result of such detentions. The loss of moral authority comes with serious ramifications, some of which can already be seen and others which may occur in the future. What is clear, so far, is that the United States has opened the door to additional criticism by other nations. Some of whom have, and will continue to, cite the United States' behavior as a justification for their own abusive detentions.

INT'L LAW ADV EXT: MODELING INTERNAL LINKS
1.
OTHER NATIONS MODEL OUR ABUSIVE DETENTION PRACTICES Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.452-455. By using the war on terror to justify abusive detentions, the United States signals to foreign nations that they are also free to use the security needs of their respective governments to abusively detain people who threaten the current regimes, including foreign citizens. In fact, foreign governments have already justified abusive detentions citing the United States as an example. For example, Malaysian Prime Minister Mahathir Mohamad has arrested his political opposition in Malaysia since before September 11, 2001, and defended the detentions by claiming that they were "more open and less arbitrary than United States detentions without trial of non-citizens." The United States openly condemns the Mohamad regime's human rights record. Yet the United States' criticism of the Mohamad regime, and others like it, is undermined by inconsistent actions. The United States has no moral authority to assert that Malaysia cannot protect itself from what it claims to be security threats, when those threats are as equally unverified as those posed by the detainees at Guantanamo Bay, or by Hamdi and Padilla. Dictators are using the United States' treatment of terrorist suspects to crack down on dissenters within their own countries. Weakened moral authority increases the risks to Americans traveling abroad, including men and women of the armed forces. When United States citizens are detained by other countries, the United States executive will have a weaker position to demand that other nations humanely treat United States citizens. These countries may claim that the detention of United States citizens is pursuant to their security interests and will be able to point to the United States' recent abusive detentions in order to justify their actions. Because other nations will be able to use the example of abusive detentions by the United States, United States citizens traveling and residing abroad will risk abusive detentions by other nations. Moreover, according to the principle of reciprocity, if another nation no longer expects the United States to abide by accepted rules of war, the other nation will not feel obligated to do so. United States soldiers are active across the world, and are often engaged in conflict abroad. How the United States treats prisoners of other nations is how United States citizens, if they become imprisoned by other nations, will be treated.
2.
U.S. ABUSES UNDERMINES ITS ABILITY TO PERSUADE OTHER STATES TO REJECT SIMILAR PRACTICES Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.422. In conducting the "war on terror" in response to the attacks on September 11, 2001, the United States developed a practice of detaining suspected enemy combatants, terrorists, and insurgents in a manner inconsistent with the nation's foreign policy. Treatment of these detainees has involved and continues to involve abusive practices in defiance of international legal and moral standards. The practice of abusive detentions by the United States in Guantanamo, Iraq, and within the United States weakens the United States' moral authority to confront abusive detentions by other nations. "Moral authority" is the influence gained by possessing credibility based upon moral standing in regard to that issue. This influence is gained by engaging in a practice of do-as-I do, rather than do-as-I say, policies. The type of moral authority discussed herein is the ability of the United States to influence other nations not to engage in the use of abusive detentions by not engaging in abusive detentions itself. While it may be impossible to quantify moral authority, this note will establish a discernable weakening of the United States' moral authority as a result of the United States' practice of abusive detentions. Throughout this note, "abusive detentions" will be used to describe detentions that are arbitrary, indefinite, incommunicado, lack judicial review, include acts of torture or severe interrogation techniques, or any combination of the above.
INT'L LAW ADV EXT: TORTURE -- IMPACT EXTENSIONS

1. TORTURE DEHUMANIZES Amnesty International, United States, Human Dignity Denied, Torture and Accountability in the 'War on Terror,' October 27, 2004, http://web.amnesty.org/library/Index/ENGAMR511452004 In the end, however, the absolute prohibition of torture and cruel, inhuman or degrading treatment in international law rests firmly on moral grounds. It is about what sort of society we aim to build. Ariel Dorfman's country, Chile, suffered gross human rights violations on and following 11 September 1973, the day of the coup that brought Augusto Pinochet to power. Dorfman has written: "[T]orture is not a crime committed only against a body, but also a crime committed against the imagination. It presupposes, it requires, it craves the abrogation of our capacity to imagine someone else's suffering, to dehumanise him or her so much that their pain is not our pain. It demands this of the torturer, placing the victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing, the same numbness, those who know and close their eyes, those who do not want to know and close their eyes, those who close their eyes and ears and hearts." 2. TORTURE AND ABUSE ONLY ENCOURAGES PEOPLE TO FIGHT THE U.S. Paul Wells, "Obama's Torture Problem Is Only Just Beginning," MACLEAN'S, 4-6-09, p.15. You could say the abuse wrung information from them that saved lives. Claims to that effect are, to say the least, hotly disputed. In the meantime, remember all those false alarms in 2002 about attacks on banks and shopping malls and nuclear plants? Probably terrified detainees were babbling to make their tormentors stop, kicking off countless wild goose chases. The widespread abuse of prisoners did have one certain result, however. Alberto Mora, a former U.S. Navy general counsel, told a Senate committee last year: "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq -- as judged by their effectiveness in recruiting insurgent fighters into combat -- are, respectively, the symbols of Abu Ghraib and Guantanamo." The same symbols have reached Afghanistan, where Canadians continue to fight and die.

INT'L LAW ADV EXT: TORTURE -- ONGOING NOW
1.
PRISONERS CONTINUE TO BE TORTURED Mohammed A. Salih, "US Night Raids and Secret Prisons Anger Civilians," IPS, 1-29-10, http://ipsnews.net/news.asp?idnews=50159, accessed 4-10-10. Gopal reports that of the 24 people he interviewed for the story, 17 claimed they had been abused at or on route to U.S.-run prisons, in ways reminiscent of the widely-publicised abuses at Abu Ghraib prison in Iraq. Doctors, members of the Afghan Independent Human Rights Commission and government officials corroborated 12 of these claims. Torture practices included deprivation of sleep for hours or even days in some cases, suspending prisoners upside-down from the ceiling, holding them in "stress positions", and using dogs to frighten and in some cases bite the prisoners. Gopal's story is the first to probe night raids in Afghanistan in detail, and one of the very few to investigate the existence of U.S.-run secret prisons in the country. Human rights groups have repeatedly voiced concerns over the deteriorating conditions in Afghanistan, in particular in the southern and eastern parts of the country where the Taliban insurgency is strongest.
2.
NEW REPORTS PROVE THAT THE US IS ABUSING PRISONERS AT A SECRET PRISON Daniel Tencer, "Report: Afghans in Secret Jail 'Made to Dance' to Use Bathroom," THE RAW STORY, 4-15-10, http://rawstory.com/rs/2010/0415/afghans-abused-secret-jail-bagram/, accessed 4-16-10. Bagram prisoners 'moved around in wheelchairs with goggles and headphones on' The US military is operating a "secret jail" at an Afghan airbase where prisoners are deprived of sleep and "made to dance" by US troops whenever they want to use the toilet, a BBC report states. The BBC interviewed nine people who say they were held at the facility, known as the "black hole," at the site of the Bagram air base. The prison appears to be separate from the main Bagram prison, which the US established after the 2001 invasion and which continues to be the target of human rights complaints. A man identified only as "Mirwais" who says he spent 24 days at the facility told the BBC that prisoners are routinely subjected to sleep deprivation. "I could not sleep, nobody could sleep because there was a machine that was making noise," said Mirwais. "There was a small camera in my cell, and if you were sleeping they'd come in and disturb you." "Mirwais said he was made to dance to music by American soldiers every time he wanted to use the toilet," the BBC reports. Witnesses said the lights were kept on in their cells at all times; that the Red Cross had no access to the facility; and most had been beaten by US troops before they were brought there. The BBC report does not address under what circumstances the witnesses found themselves there, or whether any of them were insurgents.
3.
U.S. OFFICIALS CONTINUE TO TORTURE AND ILLEGALLY DETAIN PERSONS IN AFGHANISTAN Tom Eley, "Torture Continues at US Prisons in Afghanistan, WSWS, International Committee of the Fourth International, 12-1-09, www.wsws.org/articles/2009/dec2009/afgh-d01.shtml, accessed 4-7-10. Recent media reports reveal that the US military continues to carry on torture and illegal detention in Afghanistan at a dungeon known to inmates as "the black prison." The jail, located on the Bagram Air Base next to the notorious Bagram prison north of Kabul, operates under the executive order of President Obama. After entering office, Obama ordered the closure of Central Intelligence Agency (CIA) prison "black sites" -- which were in fact no longer active -- but exempted those prisons run by the military's Special Operations, which was headed from 2003 until 2008 by General Stanley McChrystal, now US commander of the Af-Pak theater. US military officials recently said they had no plans to close the Afghan jail and another like it at the Balad Air Base in Iraq, which they claimed were needed to interrogate "high-value detainees." Two teenage Afghan boys told the Washington Post that they were beaten, photographed naked, sexually humiliated, denied sleep, and held in solitary confinement by American guards at the prison this year. Interviewed at a juvenile detention center in Kabul, where they have been transferred, "the teenagers presented a detailed, consistent portrait" of the abuse they experienced, the newspaper reported. Their descriptions of the prison were confirmed by two other former prisoners. In addition to being punched and slapped, Rashid, who the Post describes as "younger than 16," said he was forced to view pornography "alongside a photograph of his mother." He was also forced to strip naked in front of about a half-dozen US soldiers. "They touched me all over my body," he said. "They took pictures, and they were laughing and laughing. They were doing everything." "That was the hardest time I have ever had in my life," said Rashid, who was arrested this spring. "It was better to just kill me. But they would not kill me. I was just crying and crying. I was too young." On Saturday, the New York Times published interviews with three former inmates who also spoke of the black prison near Bagram. Each informant "was interviewed separately and described similar conditions," the Times notes, and "[t]heir descriptions also matched those obtained by two human rights workers who had interviewed other former detainees at the site." One of the three men was arrested months after Obama's inauguration as US president, as were the two teenage boys interviewed by the Post. All of those interviewed by the Times and the Post maintained that they were not "Taliban." Without being charged with a crime, they were seized by US soldiers, then bound, gagged, and hooded, and taken to the "black prison." The jail, according to the Times' sources, "consists of individual windowless concrete cells, each illuminated by a single light bulb glowing 24 hours a day." The cells are small; one prisoner said his was only slightly longer than the length of his body. US soldiers throw food into the cells through slots in the door.
INT'L LAW ADV EXT: TORTURE -- ONGOING NOW cont'd

4. TORTURE HAS BEEN A RECURRING PROBLEM AT BAGRAM Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. Torture or other ill-treatment of detainees continued even after the deaths of Dilawar and Mullah Habibullah drew widespread public concern. Afghan national 'Ala Nour alleged that after he was taken to Bagram in late 2003 (which he said had followed beatings during interrogations at a US forward operating base) he had been threatened with dogs, stripped, blasted with cold water, given a jumpsuit and put in a cell with 12 other people, with a plastic bucket in the corner for a toilet. He said that he was interrogated some 22 times in Bagram, each time shackled and handcuffed. He was released after about five months, during which time he said that he had met with the ICRC once. Another Afghan national, Haji Mohamed Rafik, said that he had been held in Bagram from October 2004 to July 2005, and that for the first five months had been held in an 'individual' cell and prohibited from talking to other detainees, before being put in a 'cage' with 14 other detainees. He said that he would have complained to the ICRC about long-term sleep deprivation, but did not because US soldiers were always present with the ICRC delegation. Another Afghan national, Mohammed Anwar, was held in Bagram from October 2004 to May 2005. He told Amnesty International that his treatment by US forces in Bagram had been very bad, and had included stripping and curtailment of religious practices, and that there was "no human behaviour there". Haji Zaher, an Afghan national held in Bagram in late 2004 said that talking to fellow detainees resulted in punitive isolation in a small 'cage'. He said that he had been interrogated nine times: "They told me that I was not able to see my family, my mother and father. I could not see my children if I didn't given them information. They said that I will be staying in prison for many years and that I will die in here. So all the time, they put pressure on me in this way to confess to something that they wished". He said that this included the threat of transfer to Guantanamo where he would be held for the rest of his life if he did not cooperate. 5. DETAINEES ARE SUBJECTED TO "HARSH INTERROGATION" TECHNIQUES Tim Golden, "U.S. Prison Grows Beyond Capacity in Afghanistan," NEW YORK TIMES 1-7-08, http://www.nytimes.com/2008/01/07/world/asia/07iht-07bagram.9047054.html?_r=1, accessed 4-7-10. The two United States officials, who insisted on anonymity because of the confidentiality of Red Cross communications, suggested that the organization had been more forceful in private. They said the group had complained that detainees in the isolation area were sometimes subjected to harsh interrogations and were not reported to Red Cross inspectors until after they were moved into the main Bagram detention center and formally registered -- after being held incommunicado for as long as several months. 6. BAGRAM DETAINEES HAVE BEEN TORTURED Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. As at Guantanamo, in the absence of judicial oversight, the detentions in Bagram have been marked by the torture or other ill-treatment of detainees, particularly in the early years. If anything, detainees at Bagram suffered more deprivations and had less legal protection than those at Guantanamo. As in the case of Guantanamo, accountability for such abuses has been minimal. As at Guantanamo, the detainees at Bagram have included children, denied their right under international law to special treatment according to their age. As at Guantanamo, detainees have been subject to transfers into and out of the base without judicial or other independent oversight or notification of family members. As at Guantanamo, the Central Intelligence Agency (CIA) is believed to have conducted secret detentions and interrogations at Bagram, and both facilities have served as hubs for the program of unlawful 'renditions' operated largely by the CIA. At least two of the cases currently before Judge Bates concern individuals who are alleged to have been subjected to enforced disappearance at unknown locations by or on behalf of the CIA before being taken to Bagram (see further below).
INT'L LAW ADV EXT: TORTURE -- ANSWERS TO: "GOOD FOR INTEL"
1. TORTURE ONLY DISCOURAGES OTHER PEOPLE FROM PROVIDING KEY INFORMATION TO THE GOVERNMENT Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.591-592. Similarly, when it comes to law enforcement, the Bush premise that the key to fighting terrorism is squeezing information from the suspect in the interrogation room, is actually not what terrorism experts will tell you is what matters. They will say that in percentage terms maybe fifteen, twenty percent of the key information comes from the interrogation room. But by far and away the most important information comes from people like you and me. From the general public. People who see something suspicious and report it. And the key to a successful fight against terrorism is convincing the general public that they want to be a part of this law enforcement effort. Now you can say you know of course we would all turn in a terrorist suspect if we knew. But if you felt that by doing so you were becoming part of a dirty war, if you felt you were turning somebody over to be tortured or to disappear, you may think twice. And you would particularly think twice if you were from the community that had tended to give rise to that terrorist suspect. The more people identify with a suspect, the more information they're likely to have about that person's misconduct, the less likely they are to cooperate with the law enforcement effort. So, I would argue that, far from getting the key information by using torture and disappearance and detention without trial, that the Bush Administration is actually shutting off the most important source of information that it can get to. 2. ALLOWING LEGAL ACCESS IS THE BEST WAY TO OBTAIN INFORMATION FROM DETAINEES Center for Constitutional Rights, "Obama's Record: Indefinite Detention," 4-1-10, http://ccrjustice.org/obamas-record-indefinite-detention, accessed 4-21-10. Law enforcement experts have long known that the best way to obtain reliable intelligence from suspected criminals after arrest is to give them an attorney and a trial. The Obama administration is continuing to play on public fears to argue otherwise for political ends and to maintain the expansive detention powers it inherited from the Bush administration. Indefinite detention is the central problem with the prison at Guantanamo; it is an assault on our most fundamental principles of justice and the rule of law. 3. TORTURE DOESN'T WORK, ONLY RECRUITS TERRORISTS Adam Serwer, "The Blight of Bagram," THE AMERICAN PROSPECT, 2-26-09, www.prospect.org/cs/articles?article=the_blight_of_bagram, accessed 4-21-10. Moments after Obama signed an executive order on Jan. 23 mandating that the prison at Guantanamo Bay be closed within a year, retired Maj. Gen. John Eaton, an Iraq veteran, declared that torture was the tool of "the lazy, the stupid, and the pseudo-tough. It's also perhaps the greatest recruiting tool that the terrorists have." It seemed that America's policy of human-rights abuse and indefinite detention might come to an end. 4. TORTURE IS UNRELIABLE AND INEFFECTIVE Michael Ratner, President of the Center for Constitutional Rights (New York), "Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture," CARDOZO LAW REVIEW v. 24, April 2003, p.1521. Furthermore, I believe torture is ineffective. The idea that officials know who has information is very remote. It is unlikely they can find and obtain the truth from those who will be tortured. If we look at the errors made regarding the imposition of the death penalty in this country, we can see how risky the use of torture is. Even with full court processes necessary to prosecute an alleged murderer and the fact that proof beyond a reasonable doubt is necessary for conviction, convictions of the innocent are all too common. Imagine if, as Alan suggests, all that is needed is a warrant. No matter the strictness of the warrant requirements, many innocent people will be tortured. Torture is akin to the death penalty; it has lasting effects that can never be remedied. There are torture-healing centers throughout the world that deal with torture victims. Many of these people are damaged for the rest of their lives. 5. TORTURE PRODUCES UNRELIABLE INFORMATION, LEADS TO WILD GOOSE CHASES Michael Ratner, President of the Center for Constitutional Rights (New York), "Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture," CARDOZO LAW REVIEW v. 24, April 2003, p.1521. Third, torture will elicit a lot of false information from many people. Agents will spend wasted time tracking down false leads. The government will issue warnings that have no basis. The Supreme Court was concerned with the false confession issue in Miranda, a case that only addressed the coercive circumstances of not having a lawyer. How much more unreliable are confessions garnered as the result of torture? In sum, torture is illegal, it is ineffective, and it is clearly immoral. It harms the very nature of our democracy. It degrades us as human beings. We would no longer stand as the important example of a country that says "no" to torture, but as country that says "yes".
INT'L LAW ADV EXT: TORTURE -- ANSWERS TO: "GOOD FOR INTEL" cont'd
6. HARSH INTERROGATION TECHNIQUES ARE ILLEGAL AND INEFFECTIVE Ken Roth, Executive Director of Human Rights Watch, "The Law of War in the War on Terrorism" Council on Foreign Relations Debate, FEDERAL NEWS SERVICE, April 14, 2005, npg. Now these rules are reflected, among other places, in the field manual that the U.S. Army uses to govern its intelligence interrogations. And these manuals have been developed by professionals who are facing quite severe security threats to their own troops in the field. And what this manual has said is, basically, one, it's illegal to ever use these techniques. Two, they don't work; you're much better off establishing rapport with an interogatee -- tricking him, fooling him, but not beating him up, not putting him in a stress position, not depriving him of lengthy periods of sleep. And finally, they refuse the use of these techniques because it is dangerous for our own troops, in the words of Colin Powell. It undermines the protection for our troops that we depend on should they be captured by enemy forces. Or to put it in the terms of Joseph Biden, we respect the Geneva Conventions because we want to protect my own son should he be in battle. 7. ARMY EXPERTS SAY THAT TORTURE IS INEFFECTIVE Ken Roth, Executive Director of Human Rights Watch, "The Law of War in the War on Terrorism" Council on Foreign Relations Debate, FEDERAL NEWS SERVICE, April 14, 2005, npg. First of all, you know, John raised the pragmatism question. Do we know whether this kind of torture works or not? Well, I'm not an expert on this, but I rely on the experts in the U.S. military who drafted the Army interrogation manual who said that they don't work, that their tradition even in the face of acute security threats are that you don't use these kinds of techniques because somebody being tortured is going to say whatever he thinks is going to stop the torture. He's not going to provide reliable information.
INT'L LAW ADV EXT: TORTURE -- ANSWERS TO: "OBAMA BANNED"

1. EVEN IF TORTURE IS LESS COMMON AT BAGRAM, THERE ARE STILL SECRET PRISONS THAT THE IRC CANNOT SEE DEMOCRACY NOW, "'America's Secret Afghan Prisons': Investigation Unearths New US Torture Site, Abuse Allegations in Afghanistan," 2-2-10, www.democracynow.org/2010/2/2/americas_secret_afghan_prisons_investigation_unearths, accessed 4-10-10. Well, some of the worst torture has subsided in the last -- not just under President Obama, but in the last three or four years. Some of the worst of it has subsided. But a deeper shift that's happened is, in the early years of the war -- this is from 2001 to 2003 or '04 -- we saw a lot of this sort of thing, this sort of really serious abuse happening in Bagram, in the main prison. Today, Bagram doesn't really have that sort of abuse, and it's much -- they've really cleaned up their act over there. But some of the abuse has shifted away from Bagram into these small field prisons. There's nine official field prisons throughout the country on military bases, and they've shifted towards these military bases. And the Red Cross doesn't always have access to all of these sites. And these sites are usually run by Special Operations Forces. So they're more -- they're out of the public view more than Bagram, so it's a little harder to know what's exactly happening in these places. 2. ONLY CIA FACILITIES HAVE BEEN SHUT DOWN -- SPECIAL FORCES FACILITIES ARE STILL OPEN Johann Hari, "Obama's Secret Prisons in Afghanistan Endanger Us All," THE INDEPENDENT, 2-12-10, www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-obamas-secret-prisons-in-afghanistan-endanger-us-all-1896 996.html, accessed 4-7-10. Where are all these men vanishing to? Obama ordered the closing of the CIA's secret prisons, but not those run by Joint Special Operations. They maintain a Bermuda Triangle of jails with the notorious Bagram Air Base at its centre. One of the few outsiders has been into this ex-Soviet air-hangar is the military prosecutor Stuart Couch. He says: "In my view, having visited Guantanamo several times, the Bagram facility made Guantanamo look like a nice hotel. The men did not appear to be able to move around at will, they mostly sat in rows on the floor. It smelled like the monkey house at the zoo." We know that at least two innocent young men were tortured to death in Bagram. Der Spiegel has documented how some "inmates were raped with sticks or threatened with anal sex". The accounts of released prisoners suggest the very worst abuses stopped in the last few years of the Bush administration, and Obama is supposed to have forbidden torture, but it's hard to tell. We do know Obama has permitted the use of solitary confinement lasting for years -- a process that often drives people insane. The International Red Cross has been allowed to visit some of them, but in highly restricted circumstances, and their reports remain confidential. In this darkness, abuse becomes far more likely. 3. ANTI-TORTURE REFORMS ARE MEANINGLESS BECAUSE OF THE CURRENT LACK OF OUTSIDE OVERSIGHT Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. In any event, without independent oversight of detentions or access to detainees, either by courts, legal counsel or human rights monitors, how this recent policy and law has translated into action in Bagram remains publicly unknown. There have been allegations that have raised concerns in this regard. According to the New York Times in January 2008, for example, a confidential ICRC memorandum the previous summer complained that dozens of detainees had been hidden from the ICRC in secret isolation cells at Bagram, some held there for months before being moved into the main facility and registered. Harsh interrogation techniques were allegedly employed against the detainees held incommunicado there. The memorandum apparently referred to in this article was released under FOIA litigation in February 2009. Dated 25 July 2007, and entitled 'ICRC report of undisclosed detention facility at Bagram airfield, Afghanistan', the entirety of the text is redacted (blacked out). Allegations of ill-treatment made in a sworn declaration given by Jawed Ahmad, an Afghan journalist released from Bagram in September 2008 also give cause for concern. The previous administration said that it "[took] issue with many of the allegations contained in the declaration", without providing any further detail of which parts it disagreed with. Amnesty International is not in a position to verify Jawed Ahmad's allegations, but considers that the US authorities must ensure an independent investigation into them, make public the findings of such an investigation and, if warranted, ensure that any perpetrators are brought to justice.

SOFT POWER ADD-ON: 2AC
1.
ABUSE DETENTIONS INCREASE ANTI-AMERICANISM, UNDERMINE OUR ABILITY TO PROMOTE THE RULE OF LAW Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.446-447. A loss of moral authority has several potentially significant consequences. One consequence is the resulting harm to the United States' public image and credibility. International and domestic outrage over the abuses at Guantanamo, Abu Ghraib, and the abusive detentions of Hamdi and Padilla increases worldwide anti-American sentiment. Similarly, the United States' credibility in promoting principles, such as the "rule of law," is weakened because abusive detentions defy international law and United States domestic law. A second important consequence is the likelihood that other nations will mirror the practice of the United States. The United States has sent the message that when security concerns are implicated, a state may engage in the practice of abusive detentions. Thereby, the actions of the United States open the door for enemies to abusively detain citizens of the United States or its allies. This exposes the United States to the very real possibility that military personnel who are detained pursuant to a military action will not be accorded POW status and may be subject to abusive detentions.
2.
LACK OF SOFT POWER HURTS OUR LEADERSHIP -- UNDERMINES WAR ON TERROR, DISEASE INITIATIVES, EFFORTS TO STOP PROLIF Mitchell B. Reiss, "Restoring America's Image: What the Next President Can Do," SURVIVAL v. 50 n. 5, October 2008, pp.99-114. Still, not all criticism of the United States is illegitimate or hypocritical, and both presidential candidates -- in a rare area of agreement -- recognise that the world's image of America today is not only at odds with how the American people perceive themselves, but if allowed to persist, will have serious implications for America's foreign policies, from how the US conducts its business relations, to how it promotes democracy, to how it fights the 'war on terror'. They further recognise that bad feeling towards the United States will have consequences for global governance in the twenty-first century, affecting America's ability to join forces with other countries to fight poverty and disease, prevent the spread of nuclear weapons, end conflicts around the world, and promote international peace, security and prosperity. Thus, Senator John McCain has called for a 'new compact' with the countries of the world based on 'mutual respect and trust', while a major focus of Senator Barack Obama's campaign has been restoring America's image in the world. Still unclear, however, is what either man could actually do to repair the damage. A first step is to identify the four distinct sources of anti-Americanism and then to understand that some will be much easier to mend than others. With imaginative policies and adroit diplomacy, the next president may be able to dampen anti-Americanism, but will probably not be able to lay it to rest altogether. Note to debaters - pick a terminal impact to prolif, terrorism, or disease to go here

SOFT POWER ADD-ON: EXTENSIONS
1.
FAILURE TO FOLLOW THROUGH AND RELEASE DETAINEES UNDERMINES OUR INTERNATIONAL CREDIBILITY Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. Similarly, the process of releasing individuals from Guantanamo has been excruciatingly slow and sometimes completely blocked. Those who have been declared eligible for release or transfer -- a status once referred to as "No Longer Enemy Combatants" -- have been placed essentially in the hands of the nation's diplomats. Currently, according to a January Department of Defense press release, approximately 60 detainees who have been ordered to be released still remain in Guantanamo. Where countries of origin are allies of the United States, detainees can be transferred or released. For those from countries with which we have weaker or more problematic diplomatic ties, the possibility of release or return, even after approval from U.S. authorities, often remains a wish rather than a reality. We should not underestimate the costs of this limbo. Not only does it do damage to the detainee who is neither released, transferred nor scheduled for trial, but also to the credibility of the United States. America often does not release in any timely fashion those it has named to be freed or to be transferred to custody elsewhere. The United States can no longer be taken at its word, and its judicial process no longer stands as a model of liberal freedoms.
2.
ABUSIVE DETENTION FUELS ANTI-AMERICANISM David Cole, Professor, Law, Georgetown University, "One Nation Under Law -- Not Bush," SALON, 7-25-06, lexis. If by "creative thinking" you means torturing suspects, "disappearing" them into CIA black sites, holding them indefinitely without hearings, and trying them in tribunals that permit people to be executed on the basis of secret evidence, then perhaps creative thinking should be suppressed. Bending to world opinion would indeed be a radical change for a president who, during the 2004 presidential debates, derisively rejected concern with how the United States is seen around the world as an unacceptable "global test." But making U.S. practice conform to the international rules that formally reflect world opinion is a necessary first step if we are to begin to reduce the unprecedented levels of anti-American sentiment found among our allies and foes alike, and offset the propaganda advantage our unilateral approach has given to al-Qaida.
3.
INDEFINITE DETENTION UNDERMINES RULE OF LAW, WHICH GUTS U.S. POWER ABROAD Diego C. Asencio, former Ambassador to both Brazil and Columbia et al., Brief of Diego C. Asencio, A. Peter Burleigh, Lincoln Gordon, Allen Holmes, Robert V. Keeley, L. Bruce Laingen, Anthony Lake, Samuel W. Lewis, Stephen Low, Robert A. Martin, Arthur Mudge, David Newsom, R.H. Nolte, Herbert S. Okun, Thomas R. Pickering, Anthony Quainton, William D. Rogers, Monteagle Stearns, Viron P. Vaky, Richard N. Viets, Alexander F. Watson, William Watts, and Robert J. Wozniak and Amici Curiae in Support of the Petitioners, William H. Hannay, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 20, January 14, 2004, lexis. Power counts. But this nation's respect for the rule of law -- and in particular our reverence for the fundamental constitutional guarantee of individual freedom from arbitrary government authority -- have gone far to earn us the respect and trust which lie at the heart of all cordial relations between nations. Thus the perception of this case abroad -- that the power of the United States can be exercised outside the law and even, it is presumed, in conflict with the law -- will diminish our stature and repute in the wider world. We have come to believe, in our representation of this country to other nations, that those nations are more willing to accept American leadership and counsel to the extent that they see us as true to the principle of freedom under the law. Indeed, the matter has rarely been better put than by President Bush in signing the Torture Victims Protection Act on March 12, 1992: In this new era, in which countries throughout the world are turning to democratic institutions and the rule of law, we must maintain and strengthen our commitment to ensuring that they are respected everywhere.

STATE OF EXCEPTION ADD-ON: 2AC
1.
OBAMA'S SECRET PRISONS ARE THE MODERN STATE OF EXCEPTION Bernard Keenan, "Secret Prisons and Sovereignty," THE GUARDIAN, 8-22-09, www.guardian.co.uk/commentisfree/libertycentral/2009/aug/22/secret-prisons-bagram-sovereignty, accessed 4-21-10. Last week, the American Civil Liberties Union (ACLU) demanded that the Obama administration release information on 600 detainees held at Bagram airbase in Afghanistan. The request mirrors that made to the Bush administration seven years before, regarding the men held in Guantanamo Bay. The continued use of secret prisons to hold detainees -- some not captured in the Afghan conflict, but brought to Bagram from elsewhere -- seems contrary to the announcement of 23 January 2009 when the Obama administration, fresh into office, declared that the indefinite detention of foreign prisoners at Guantanamo Bay would end. In April, the CIA announced that it had ceased operating its network of secret prisons. Publicly at least, it seemed that the extraordinary powers claimed for the president following 11 September 2001 had been a historical anomaly, gone with Bush and his cabal. But while the US has publicly declared a commitment to the rule of law and the closure of Guantanamo Bay, existing "black sites" like Bagram airbase and other secret locations around the world, particularly the Horn of Africa, are expected to grow. The work of organisations like the ACLU, Amnesty International and Reprieve to gain information on such places and provide legal help to detainees will become even more difficult. No detainee at Bagram has yet gained access to a US court.Has Obama simply adopted a doctrine of the Bush administration, or does the ongoing existence of secret prisons and extralegal detention reveal something more about the limits of law itself? Jurists in the early 20th century, much like their Roman predecessors, were much preoccupied by the conditions under which the law could be suspended to preserve it. Europe was a very different place to the heavily regulated, legally dense creation of the past 40 years. In times of war, it is generally agreed that the executive branch of government could adopt emergency powers to suspend the normal legal order. The rationale is to deal with a crisis effectively, defeat the enemy or quickly distribute aid and supplies. In such a "state of exception", as investigated by Italian theorist Giorgio Agamben, normal legal rules are superseded by facts of life. The distinction between legal rule and bare necessity becomes blurred. In a time of emergency, the Nazi jurist Carl Schmitt wrote, "sovereign is he who decides on the state of exception". No sooner had Hitler come to power than he declared personal liberties contained in the constitution of the Weimar republic to be suspended, to bring about the Third Reich. His decree was never repealed, and so the entire 12 years of his rule was, in legal terms, a state of exception during which his word was law. The definition of a sovereign, for Schmitt, is the legal power to suspend legality itself. Interest in Schmitt was understandably renewed following the declaration by the US president George W Bush in November 2001 that "enemy combatants" would be detained without access to normal courts. The ordinary laws of war would not apply to them. This decision fitted Schmitt's concept of sovereign power to the letter. But in Agamben's reading, this is not simply a particular doctrine adopted by the Nazis and the Bush administration. Rather it is inherent in the structure of sovereignty and law. For Agamben, the "state of exception" is in fact the normal situation. The power to create legal black holes is not so much an abuse of executive power; it is something built into the nature of executive power itself. We can think of examples closer to home. Northern Ireland was governed from the moment of its creation in 1922 with the aid of the Special Powers Act, a set of executive measures that later gave the authority for internment in 1971. The lineage from the Defence of the Realm Act 1914, via the Special Powers Act and the Prevention of Terrorism Acts to the contemporary raft of counter-terrorist legislation of the past decade is easy to trace. At all points the executive has reserved the power to decide on enemies or threats to the normal order, people who are designated as outside the sphere of law, and therefore subject to detention, torture, or even death. The secret prison is, like the concentration camp, the physical manifestation of the state of exception, a place where law cannot penetrate. But those subject to such powers are not limited to the detainees of the "war on terror", against whom torture and extra-judicial imprisonment are said to be not only justified, but necessary. The paradigm provides a different way of thinking about, for example, the unlawful detention and violent removal of immigration detainees from the UK, under the powers invested in the secretary of state. It also offers insight into the deployment of counter-terrorist powers by the police against civil protests in our cities and at climate camp. In contemporary sovereignty there is always a hint of dictatorship in the power to decide who is outside the law. It is against this that those who believe in the rule of law, civil liberties, human rights and equality must struggle.
STATE OF EXCEPTION ADD-ON: 2AC cont'd

2. STATES OF EXCEPTION JUSTIFIES WARS WAGED ON BEHALF OF THE POLIS, RISKS EXTINCTION Eugene Thacker, "Nomos, Nosos and Bios," CULTURE MACHINE v. 7, 2005, www.culturemachine.net/index.php/cm/article/view/25/32, accessed 8-7-09. There must be some set of principles for allowing, in exceptional circumstances, the introduction of sovereign power. In other words, there must be some set of conditions that can be identified as a threat, such that a corresponding state of emergency can be claimed, in which the formerly decentralized apparatus of biopolitics suddenly constricts into the exception of sovereignty. 'It is at this moment that racism is inscribed as the basic mechanism of power, as it is exercised in modern States' (2003: 254). But I would argue that Foucault means 'racism' here in a specific, medical and biological sense. Racism in this sense is a biologically-inflected political relation in which war is rendered as fundamentally biological: Wars are no longer waged in the name of a sovereign who must be defended; they are waged on behalf of the existence of everyone; entire populations are mobilized for the purpose of wholesale slaughter in the name of life necessity: massacres have become vital to the existence in question is no longer the juridical existence of sovereignty; at stake is the biological existence of a population. (1978: 137) In a curious turn of phrase, Foucault later calls this a 'democratization of sovereignty,' a condition in which the sovereign state of emergency emerges through a widespread and generalized threat to the population (2003: 37). In such conditions, both a medical-biological view of the population, and a statistical-informatic means of accounting for the population, converge in the identification of potential threats and possible measures of security. In a sense, it is war that acts as the hinge between population and information, but a war that always puts at stake the biological existence of the population (and thus nation). The body natural, even as it serves as an analogy for the body politic, is always what is fundamentally at stake in the body politic.
SOLVENCY MECHANISM: CONGRESSIONAL ACTION

1. WE NEED A LAW LAYING OUT DUE PROCESS PROVISIONS TO RESTORE OUR REPUTATION -- CONGRESSIONAL SILENCE NOW David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.745. Congress has thus far left the regulation of enemy-combatant detentions to executive innovation. The AUMF is silent on the subject. The Military Commissions Act of 2006 prescribes procedures for war-crimes trials, but says nothing with respect to the process for assessing the propriety of detention itself. Given what is at stake, both for the detainees, who may spend years in detention, and for the United States, whose reputation has been severely damaged worldwide by its failure to accord the detainees a fair process, a statute setting forth carefully crafted and fair substantive standards and procedures for enemy-combatant detentions should be required. 2. THE AUTHORIZATION FOR USE OF MILITARY FORCE DOES NOT PROVIDE ADEQUATE LEGAL GROUNDS FOR U.S. DETENTIONS IN AFGHANISTAN Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.4. Passed by Congress in response to the 9/11 attacks, the AUMF authorizes the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." According to the government, because "the laws of war have evolved primarily in the context of international armed conflicts," the President has the authority to detain 'those persons whose relationship to al Qaeda or the Taliban would, in appropriately analogous circumstances in a traditional armed conflict, render them detainable." While detention is an essential element in armed conflict, we submit that the AUMF -- a U.S. domestic law -- is an insufficient basis for detention by the United States in the current non-international armed conflict in Afghanistan.
SOLVENCY MECHANISM: COURT ACCESS (GENERAL)

1. THERE IS NO REASON WHY WE CANNOT PROSECUTE ALL OF THE ACCUSED TERRORISTS American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. The premise that there exists a significant class of terrorism suspects who are too dangerous to release but cannot be prosecuted is groundless. Federal prosecutors have an imposing array of weapons against suspected terrorists, including laws criminalizing "material support" for terrorism. In recent years, defendants have been convicted of material support for attending terrorist training camps, attempting to provide medical aid to injured fighters, and even supplying funds for the humanitarian activities of designated terrorist groups. A detainee who cannot be prosecuted under such sweeping laws is unlikely to pose a "significant security threat." Moreover, if the government's evidence is not "usable" in court because of the brutal methods employed to obtain it, then surely it is not "usable" or reliable enough to justify long-term imprisonment without charge or trial. 2. WE NEED TO IMPOSE JUDICIAL OVERSIGHT IN PLACES LIKE BAGRAM American Civil Liberties Union, "Obama Administration Continues Indefinite Detention Policy for Bagram Prisoners," 2-23-09, www.aclu.org/national-security/obama-administration-continues-indefinite-detention-policy-bagram-prisoners, accessed 4-21-10. The detention facility at Bagram was set up by the U.S. military after the U.S. invaded Afghanistan in 2001. Like Guantanamo, it was designed to be out of the reach of U.S. courts -- a legal black hole -- during the so-called "war on terror," which lacks geographical or durational boundaries. Like Guantanamo, Bagram holds individuals from all over the world, including locations where there are no combat operations taking place. Like Guantanamo, Bagram holds terrorism suspects who were not captured on the battlefield and has imprisoned victims of the Bush administration's illegal extraordinary rendition program. And like with Guantanamo, there are well-documented reports of serious prisoner mistreatment and torture at Bagram. But in some ways, Bagram is perhaps even worse than Guantanamo because there is less judicial oversight, process and public scrutiny. "If we've learned anything from Guantanamo, it's that U.S.-run indefinite detention facilities cannot be beyond the reach of the courts, left only to the political branches to oversee," said Romero. "It is not permissible for Bagram to be a Constitution-free zone any more than it is for Guantanamo, and we need judicial oversight to ensure that Guantanamo doesn't happen again. Closing Guantanamo is not enough if we repeat its policies elsewhere." 3. THE U.S. NEEDS TO PROVIDE COURT ACCESS TO ALL BAGRAM DETAINEES Amnesty International, "USA Must Grant Bagram Detainees Access to US Courts," 9-16-09, www.amnestyusa.org/document.php?id=ENGNAU2009091613152, accessed 4-19-10. The USA must grant all detainees held in US custody at the Bagram airbase in Afghanistan access to US courts and legal counsel, as they remain unable to challenge the lawfulness of their detention in an independent and impartial court in Afghanistan, Amnesty International said on Wednesday. The US government revealed updated administrative review procedures for detainees at Bagram in a legal document filed on Monday, as it continued its bid to prevent any of the detainees from challenging their detention in a US court. Amnesty International has also urged the US government to allow detainees access to their relatives, doctors, and to consular representatives without delay. There are currently about 600 detainees held at the base, the majority Afghan nationals. Some have been held for years. They are held without access to legal counsel or to any court.

SOLVENCY MECHANISM: EXECUTIVE ACTION
1.
OBAMA SHOULD ALSO SHUT DOWN BAGRAM Daphne Eviatar, "Obama's Gitmo?" WASHINGTON INDEPENDENT, 1-7-09, http://washingtonindependent.com/24052/bagram-detainees, accessed 4-7-10. Ultimately, it may be the new Obama administration, rather than the courts, that will decide the Bagram question. "They clearly can decide, like the Bush administration has done with the vast majority of detainees at Guantanamo, to send them home and moot the cases that way," said Foster, who, along with some of her colleagues, has met with members of the Obama transition team to discuss the situation at Bagram. Or, "they could close down Bagram the same way they're moving to close down Guantanamo." There's good reason to consider the latter course, regardless of the difficult legal questions involved. As Foster observes: "it does not behoove the Obama administration to have Bagram become his Guantanamo."
2.
OBAMA ADMINISTRATION SHOULD END THE PRACTICE TO BRINGING DETAINEES TO BAGRAM Sahr MuhammedAlly, Senior Associate Law and Security Program, Human Rights First, "Obama Must Not Allow Bagram Prison to Remain an Afghan Version of Guantanamo," JURIST, 1-17-09, http://jurist.law.pitt.edu/hotline/2009/01/obama-must-not-allow-bagram-prison-to.php, accessed 4-21-10. End Practice of Bringing Detainees to Afghanistan: The Obama Administration must end the practice of transferring persons captured outside of Afghanistan to Bagram and detaining them until the "cessation of hostilities." A prison such as Bagram created with an express purpose of avoiding compliance with the law is fundamentally at odds with American values. Strategically, it's also a mistake. Detaining a large number of prisoners indefinitely and without criminal charge is not the best way to win the "hearts and minds" and cooperation of the local population in Afghanistan. A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to reverse the policy mistakes of the Bush Administration. Bagram must not become Obama's Guantanamo."

SOLVENCY MECHANISM: PRISONER RIGHTS
1.
PERSONS IN AFGHANISTAN NEED TO BE ABLE TO EXERCISE DUE PROCESS RIGHTS Eric Lewis, "Closing America's Torture Chambers," IN THESE TIMES, March 2009, p.16. Most high value detainees have been held in Afghanistan or in secret CIA prisons that lack even the minimal transparency and process of Guantanamo. The Obama administration must make clear that, once out of an active war zone, prisoners under U.S. control will be given appropriate process and held at sites where the conditions of captivity are humane and transparent. Obama's executive order barring coercive interrogation and forbidding "black site" prisons marks a sea change from the Bush legacy of secrecy and abuse. But it is important that detainees are not brought en masse to Afghanistan or other places where the government will argue that detainees lack fundamental rights because they are in a war zone or outside U.S. sovereignty. What is critical is not only the end of Guantanamo, the place and the symbol, but also Guantanamo as a parallel legal world that is anathema to American values and the rule of law. Many of the 245 men who remain are now marking their seventh year in captivity. The closure should be done carefully but quickly.
2.
ANYONE HELD BY THE U.S. GOVERNMENT SHOULD BE ABLE TO CHALLENGE THEIR DETENTION Daphne Eviatar, "Obama's Gitmo?" WASHINGTON INDEPENDENT, 1-7-09, http://washingtonindependent.com/24052/bagram-detainees, accessed 4-7-10. Legal experts acknowledge that the traditional laws of war don't easily apply to non-traditional conflicts such as this one, where the US is fighting a terrorist organization or a group of insurgents rather than a government. In World War II, for example, it was clear that the US could hold German or Italian uniformed soldiers until the war was over. But we're not at war with the government of Afghanistan, and Taliban and al Qaeda warriors don't wear uniforms and aren't always recognizable. So what should be done with people the government suspects are warriors, or may have information about terrorists? Can the US lawfully hold them indefinitely, without charge and with no meaningful way to demonstrate their innocence? "My own view is that if the US is holding somebody subject to its control then that person should have the right to challenge the legality of that detention absent extraordinary circumstances," said David Cole, law professor at Georgetown University Law School. "Why should it matter whether we're holding someone in Louisiana, Gitmo or Bagram if they're being held illegally? Shouldn't they have some right to question that?" The question becomes even more important when you consider that since the Supreme Court first decided in 2004 that Guantanamo prisoners have legal rights, the US military has largely stopped sending new prisoners there, sending them to Bagram instead. Bagram has "become the sort of Yucca mountain storage facility for these human beings," said Eugene Fidell, an expert on military law and visiting professor at Yale Law School.
3.
WE MUST FIX THE SYSTEM, NOT JUST CLOSE GITMO, TO RESTORE THE RULE OF LAW Jonathan Hafetz and Mark Denbeaux, "Guantanamo Beyond Guantanamo," HUFFINGTON POST, 12-22-09, www.aclu.org/blog/national-security/guantanamo-beyond-guantanamo, accessed 4-21-10. Those whom the government believes it can handily convict will receive full American justice, while those against whom the government lacks solid evidence will receive something considerably less. The inequities of this multi-tiered detention system will persist whether prisoners are held at Guantanamo or a "new Guantanamo" inside the country. Simply closing Guantanamo without remedying its underlying flaws will not restore the rule of law, but perpetuate a larger detention system that remains outside it.
4.
CIVILIAN TRIALS KEY TO PROTECTING OUR OWN LIBERTIES Joanne Mariner, human rights attorney, "Defendants, Not Combatants," COUNTERPUNCH, 7-9-03, www.counterpunch.org/mariner07102003.html, accessed 8-4-09. Last week, with President's Bush designation of six detainees as eligible for trial before military commissions, the trend toward reliance on a parallel system of justice to prosecute crimes of terrorism gained real momentum. It seems very likely, in fact, that military commission proceedings will begin within the next month or so. Judge Young, writing in the Reid case, said that the move toward trying federal crimes in military commissions was "the most profound shift in our legal institutions" he had witnessed in his lifetime. What he decried, most of all, was that this shift had "taken place without engaging any broad public interest whatsoever." Now that these proceedings are poised to begin, it is time for the public to start paying attention. At Reid's sentencing hearing earlier this year, Judge Young outlined the most compelling reasons to do so. Young told Reid that he had been tried in federal court so that justice in his case could be administered "fairly, individually, and discretely." And he explained: "Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties."

SOLVENCY EXT: AFGHANISTAN STABILITY
1.
ENDING ARBITRARY DETENTION IS VITAL MAINTAINING KEY PUBLIC SUPPORT Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.3. We are mindful that the United States, along with NATO allies and the Afghan government, is engaged in armed conflict with insurgent groups in Afghanistan and that detention is an element of armed conflict. But the United States should take additional steps to ensure an end to the arbitrary detentions that have undermined its counterinsurgency goals. U.S. counterinsurgency doctrine recognizes the benefits of consent from, and the need for cooperation of, the local population. A key determinant of that consent and cooperation is the degree to which the Afghan people view detention practices as fair, humane and beneficial to their security, and as progressively achieved through their own institutions. Reforms that accomplish these goals will deprive al Qaeda and the Taliban of the propaganda and recruiting opportunities created by unjust policies and practices.
2.
REGULARIZING U.S. DETENTION PROCEDURES WILL BOLSTER OPERATIONAL CREDIBILITY Human Rights First, FIXING BAGRAM: STRENGTHENING DETENTION REFORMS TO ALIGN WITH U.S. STRATEGIC PRIORITIES, November 2009, p.4. Reliance upon the AUMF to detain Afghan nationals not in the United States but in Afghanistan undercuts U.S. policy objectives to encourage increased responsibility of the Afghan government for its national security affairs. A public U.S.-Afghan security agreement or Afghan legislation would bolster U.S. support for Afghan sovereignty and advance U.S. strategy to progressively devolve responsibility for detentions to the Afghan government. The implementation of such legislation or an agreement regularizing U.S. detention would also advance the credibility of U.S. military actions in the eyes of Afghans, thus supporting U.S. counterinsurgency goals in Afghanistan.
3.
PLAN IS KEY TO AFGHANISTAN'S LONG-TERM STABILITY Amnesty International New Zealand, "US Must Reform Afghanistan Detention Policy," 11-16-09, www.amnesty.org.nz/news/us-must-reform-afghanistan-detention-policy, acessed 4-21-10. The Obama administration should revise its detention policies in Afghanistan to make them consistent with international law, Amnesty International, Human Rights First, and Human Rights Watch said today. The United States military is hosting the media and some non-governmental organisations today at its recently constructed but empty detention facility in Parwan province, Afghanistan. The three organisations urged the US to end arbitrary detention in Afghanistan and to fully align US detention practices with international law. The organisations noted that the US has made some recent changes in its detention policy in Afghanistan. These include providing detainees with "notice of the basis of their internment" and the right to call witnesses and question government witnesses. "It's common knowledge that Afghans perceive US detention operations as secretive and lacking in due process," said Sahr Muhammed Ally, Senior Associate at Human Rights First. "The US must remedy this problem and take the critical step of bringing its detention practices into an appropriate legal framework that is consistent with international and Afghan law, and allows and provides detainees with a sufficient way to challenge their detention. Such reforms are a necessary precondition to establishing long-term stability in Afghanistan through the rule of law."

SOLVENCY EXT: GENERAL
1.
WE NEED TO RE-BOOT OUR DETENTION POLICIES, AND THE PLACE TO START IS BAGRAM Karen J. Greenberg, executive director, Center on Law and Security, New York University School of Law, "Detention Nation," THE NATIONAL INTEREST, May/June 2009, ASP. THERE ARE legal, military and moral issues that would best be served by acting on the break signaled so symbolically during the first days of the new administration. President Obama's brave stance may yet produce equally bold policies. So far, however, the forward momentum has been halted in deference to the need to rethink the old policies as well as the current reality of detentions in the war on terror. Much will hinge on whether Obama sees himself as at the beginning of the process -- in terms of directives as well as rhetoric -- rather than in the middle of it. The fact that the United States faces a Bagram detention situation which has the marks of the early days of Guantanamo -- unknown prisoners with uncertain legal status -- could be seen as an opportunity to change course. Rather than play out the hand that has been dealt, the president -- having put trials, terminology and decisions on pause -could emerge from this period of reflection with a brand-new direction in mind. So far, the tone is calm, thoughtful and careful. The executive orders, the promise to review past policies and the firm timeline point toward some progress. But the bolder actions still lie ahead. Obama could refuse to tolerate any policy that deprived low-value detainees of justice. He could view with cynicism the claims that detention is equivalent to security. He could separate the CIA's need for intelligence from the roundup of large numbers of detainees from around the world. He could, in other words, begin anew. Whether or not Obama will do so, however, remains to be seen.
2.
MOST OF THE DETAINEES ARE INNOCENT AND COULD BE RELEASED IMMEDIATELY Matthias Gebauer, John Goetz and Britta Sandberg, "Detainee Abuse Continues at Bagram," SPIEGEL ONLINE, 9-21-09, www.globalpolicy.org/empire/us-un-and-international-law-8-24/torture-and-prison-abuse/48196.html, accessed 4-21-10. To this day, there are hardly any photos from inside Bagram, and journalists have never been given access to the detention center. Although exact numbers are unknown, there are believed to be about 600 detainees at Bagram, or close to three times as many as there currently are at Guantanamo. According to an as-yet-unpublished 2009 Pentagon report, 400 of the Bagram inmates are innocent and could be released immediately. The detainees at Bagram still have no right to an attorney, which means that they have no legal recourse against their imprisonment and no opportunity to testify in their cases. Some have been there for years, without knowing why. Obama has announced new guidelines for the treatment of the Bagram detainees, which would require that a US military official provide assistance to each detainee -- not as an attorney but as a personal adviser of sorts. This representative could then review evidence and witness testimony for the first time, and could request that a review board examine the case.
3.
FOLLOWING INTERNATIONAL ARREST AND DETENTION PROCEDURES ARE VITAL TO MAINTAINING SUPPORT FOR THE WAR, STABILITY Sahr MuhammedAlly, Senior Associate, Law and Security Program, Human Rights First, "Hidden Justice: Do Obama's Detenion Reforms in Afghanistan Go Far Enough," FOREIGN POLICY, 9-18-09, http://afpak.foreignpolicy.com/posts/2009/09/18/hidden_justice_do_obama_s_detention_reforms_in_afghanistan_go_far_enough, accessed 4-7-10. Successful counterinsurgency strategy depends on U.S. actions being seen as fair by the Afghan people, whose consent and cooperation is needed to further U.S. goals in ensuring a stable Afghanistan. To this end, the United States and Afghan government should enter into public security agreements which detail rules for capture, detention, and treatment of persons in Afghanistan that are consistent with international humanitarian and human rights legal standards. A transparent and public agreement that complies with international law will give legitimacy to foreign military actions among the Afghan population and will promote the rule of law. Fair and legitimate reforms would deprive al Qaeda and the Taliban the propaganda and recruiting opportunities created by unjust military practices. Respect for the rights of Afghan citizens is not only an important element to defeat of the insurgency, it is also a necessary precondition to establishing long-term stability through the rule of law.

SOLVENCY EXT: GITMO
1.
WE NEED TO CLOSE THE AFGHAN PRISONS ALSO TO MAKE CLOSING GITMO MEANINGFUL Ben Farmer, "Afghanistan's 'Guantanamo' Poses New Prison Problem for Obama," TELEGRAPH, 1-24-09, www.telegraph.co.uk/news/worldnews/northamerica/usa/barackobama/4332499/Afghanistans-Guantanamo-poses-new-prison-probl em-for-Barack-Obama.html, accessed 4-10-10. While Mr Obama struggles to work out what to do with Guantanamo's 245 remaining prisoners, critics claim Bagram and other detention centres around Afghanistan are still legal black holes. "If they close Guantanamo and they expand the one in Bagram, it's the same -- there will be no difference," said Lal Gul, chairman of the Afghanistan Human Rights Organisation. "If Barack Obama wants to close Guantanamo he should also set out to close not just Bagram, but detention centres in Khost, Kandahar and Jalalabad." The US military admits that Bagram holds a "small number of individuals" seized outside Afghanistan. But even less is known about who they are or why they are held than is public about the Taliban fighters detained there. Some prisoners are released each month or handed over to Afghan custody. Many are thought to have been there for years. The International Justice Network, representing the families of four prisoners, has been arguing that they should have the same legal rights to challenge their detention that were eventually given to Guantanamo inmates. "It's being used not as a temporary battlefield detention centre, but as a legal black hole where you can bring people to evade public and political scrutiny," said Tina Monshipour Foster, the organisation's executive director.
2.
THE ADMINISTRATION REFUSES TO COME CLEAN ON TORTURE AND DETENTION PROBLEMS IN AFGHANISTAN -- RENDERS ITS GITMO POLICY FARCICAL Thomas R. Eddlem, "The Pentagon's Detainee Torture Whitewash," NEW AMERICAN, 2-23-09, http://www.thenewamerican.com/usnews/election/815, accessed 4-7-10. If the Pentagon report on the Guantanamo prison were part of a genuine Obama administration effort to uncover torture where it has occurred and to make sure it does not happen again, that effort would have to extend to the prisons in Afghanistan and elsewhere as well as rendition programs. Thus far, when the administration has been pressed in federal court for documentation on rendition programs, they've simply offered "state secrets" excuses for keeping these programs secret. And the Obama administration has offered to provided government lawyers for the Bush-era architects of torture policies. The February 20 government statement on the treatment of five detainees at Bagram Air Force base simply extends the continuity. One month into the Obama administration, the public and private emphasis has been solely on the highly publicized Guantanamo prison rather than the prisons where the worst forms of torture occurred. The Obama administration wants to look good. They want to appear that they have abandoned the inhuman torture techniques of the Bush administration without actually abandoning them. In those places where the worst torture occurred, the Obama administration has pursued an increasingly consistent pattern of covering up past torture and keeping in place policies that allow for the torture to continue. It is becoming increasingly obvious that Obama's highly publicized emphasis on Guantanamo is a whitewash that will allow torture to continue in Afghanistan and elsewhere, and is not part of an attempt to restore the Eighth Amendment of the U.S. Constitution.
3.
LEAVING BAGRAM OPEN LEAVES THE CLOSING OF GITMO SIMPLY A HOLLOW GESTURE Stephen Foley, "Very Bad News: Afghanistan's Bagram Air Base Will Be Obama's Guantanamo," INDEPENDENT, 2-22-09, www.alternet.org/rights/128273/, accessed 4-21-10. Two days into his presidency, Mr. Obama promised to shut Guantanamo within a year in an effort to restore America's moral standing in the world and to prosecute the struggle against terrorism "in a manner that is consistent with our values and our ideals." But on the same day, the judge in the Bagram case said that the order "indicated significant changes to the government's approach to the detention, and review of detention, of individuals currently held at Guantanamo Bay" and that "a different approach could impact the court's analysis of certain issues central to the resolution" of the Bagram cases as well. Judge John Bates asked the new administration if it wanted to "refine" its stance. The response, filed by the Department of Justice late on Friday, came as a crushing blow to human rights campaigners. "Having considered the matter, the government adheres to its previously articulated position," it said. Tina Foster, executive director of the International Justice Network, the New York human rights organisation representing the detainees, warned last night that "by leaving Bagram open, the administration turns the closure of Guantanamo into essentially a hollow and symbolic gesture." She said: "Without reconsidering the underlying policy, which has led to the abuses at Abu Ghraib and the indefinite detention of hundreds of people all these years, then we are simply returning to the status quo. The exact same thing that had the world up in arms has been going on at Bagram since even before Guantanamo.
SOLVENCY EXT: INT'L LAW/HUMAN RIGHTS CREDIBILITY

1. U.S. ADHERENCE IN CASE OF DETAINEES IS VITAL TO STRENGTH OF INTERNATIONAL LAW 422 Current and Former Members of the United Kingdom and European Union Parliaments, Amicus Brief for the Petitioner, Claude B. Stansbury, Counsel of Record, in Salim Ahmed Hamdan, Petitioner, v. Donald H. Rumsfeld, et al., Respondents, n. 05-184, 2005 U.S. Briefs 194, 2006 U.S. S. Ct. Briefs LEXIS 6, January 5, 2006, lexis. C. It Is Crucial For The International Legal Order That The United States Abide By Its International Legal Commitments. The obligations and protections established in human rights treaties and customary law are fundamental components of the modern, liberal world order that the United States, together with its allies and other like-minded nations, strives to establish and encourage. To a far greater extent than domestic law, international law depends for its vitality and efficacy on the compliance by States with its dictates. It undermines the political and moral authority of the United States and damages the rule of law in a troubled world if the United States, contrary to its long tradition, fails to uphold the international standards that it has been so instrumental in creating and with which it has urged other nations to comply. The damage is all the greater when, as did the Court of Appeals, the United States denies that these standards even apply to its conduct. 2. INTERNATIONAL LAW REQUIRES A PROCESS WHEREBY PERSONS CAN CHALLENGE A DETENTION Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. Under international law, anyone detained or arrested on matters of a criminal nature must be brought promptly before a judge or other officer authorized by law to exercise judicial power. This is to ensure that the person has been detained according to proper process and that his or her rights have been respected. This applies as much to someone who is suspected of war crimes, crimes against humanity, or genocide as to those suspected of lesser crimes. Further, anyone whose rights have been violated must be able to seek effective remedy, including through the courts. In particular, the right under international law of anyone deprived of their liberty, in any manner or on any grounds, to take proceedings before a court to challenge the lawfulness of their detention (habeas corpus is the procedure in the USA reflecting this principle) is a right that not only safeguards the right to liberty; it also provides protection against a variety of human rights violations, including the right not to be subjected to enforced disappearance, secret detention, arbitrary detention, unlawful transfer, torture and other cruel, inhuman or degrading treatment, and the right to a fair trial by an independent and impartial tribunal established by law and to seek remedy for violations. 3. FAIR U.S. TREATMENT DETAINEES IS CRITICAL TO INTERNATIONAL LAW 422 Current and Former Members of the United Kingdom and European Union Parliaments, Amicus Brief for the Petitioner, Claude B. Stansbury, Counsel of Record, in Salim Ahmed Hamdan, Petitioner, v. Donald H. Rumsfeld, et al., Respondents, n. 05-184, 2005 U.S. Briefs 194, 2006 U.S. S. Ct. Briefs LEXIS 6, January 5, 2006, lexis. Amici have participated in this case from the outset because, despite their divergent political views, they share a common view that it is important to the international legal order that, even when faced with the threat of international terrorism, the United States comply with the standards set by international humanitarian law and human rights law. Amici have taken part in these proceedings to urge the courts to ensure that the treatment accorded to prisoners such as Hamdan -- be they terrorists or not -- meets these standards. The outcome of this case is, for Hamdan, of course, of enormous personal significance: he faces the prospect of being cast outside the legal order, into a shadow world where neither the Constitution or Laws of the United States nor the rules of international law specifically applicable to individuals caught up in armed combat, nor apparently even the rules of international law relating to fundamental human rights, give him any protection. For the community of liberal democracies committed to the rule of law, which each member of the amicus group is or has been privileged to serve, the stakes are equally high. While this case presents a number of contested issues of U.S. law (which amici do not address), to the outside world it boils down to the simple, but crucial, question of whether the system of legal norms that purports to restrain the conduct of states vis-a-vis individuals within their power will survive the terrorist threat. This case can thus be seen as one battle in the war between the evil logic of terrorism and the bedrock principles that individuals are entitled to fair and humane treatment and that the actions of all states are subject to the rule of law -- principles which American and coalition soldiers today fight to uphold in Afghanistan, Iraq and elsewhere. If the Court of Appeals' determination that law, including international law, offers no protection to individuals such as Hamdan is the last word on this question, amici fear that the lesson that will be drawn by the wider world is that the evil of terrorism has proved more than a match for our principles.

SOLVENCY EXT: SOFT POWER
1.
CLOSING GITMO DOES NOT RESOLVE THE LEGAL QUESTION OF WHAT TO DO WITH DETAINEES -- CAN ONLY RESTORE OUR LEGITIMACY IF WE PROPERLY TREAT DETAINEES David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.726-727. Guantanamo became a focal point of international condemnation of the United States' approach to the "war on terror." One of President Obama's first actions as President was to order that Guantanamo be closed within a year. Closing Guantanamo, however, will not resolve the difficult question of what to do with the men still detained there, or with the hundreds more held at Bagram Air Force Base. President Bush's ad hoc approach to the problem, assertedly predicated on Congress's AUMF and his powers as commander in chief, was a legal and political disaster. The Bush administration took a maximalist position from the start. It insisted that it need not provide any hearings to ensure that detainees were in fact enemy combatants; that the detainees were not protected by the Geneva Conventions, and therefore could be subjected to harsh coercive interrogations; and that the detainees had no recourse to judicial protection. The Supreme Court rejected each of these arguments, as did most of world opinion. Closing Guantanamo will restore legitimacy only if the Obama administration adopts a policy that clearly rejects the illegitimate aspects of the Bush administration approach.
2.
REVIEW OF DETENTION IS IMPORTANT TO U.S. MORAL AUTHORITY Jeffrey K. Cassin, "United States' Moral Authority Undermined: The Foreign Affairs Costs of Abusive Detentions," CARDOZO PUBLIC LAW, POLICY & ETHICS JOURNAL v. 4, April 2006, p.423-424. Critics of the proposition that the United States ever had any moral authority to lose will point out that its history of slavery, racism, and other human rights violations has entitled the United States to little or no moral authority against abusive detentions. However, the United States' claim to moral authority stems from two main sources: (1) its practice of providing habeas corpus review of government detentions by an independent neutral; and (2) the tradition of promoting human rights through the United States' foreign policy, since at least the end of World War II. In the United States, habeas corpus offers protection against abusive detentions by providing a detainee with a review of his or her detention conducted by the non-political branch of the government, the judiciary. The American legal tradition respects the balance between government power and individual autonomy by preserving the government's ability to detain criminals and enemy combatants, provided that the detentions are not abusive detentions.
3.
PLAN KEY TO SOLVING LEADERSHIP MIAMI HERALD, "Gitmo Reconsidered," 7-12-06, npg. This is a far better way to go than trying to find a way around the Supreme Court ruling that rejected the inadequate military tribunals for detainees at Guantanamo Bay. Now the government must devise rules that comply with the letter and spirit of the Geneva protocols. Hard, but not impossible. All suspects must receive fair treatment and a trial that meets international standards of justice. Surely Congress and the White House can figure out how to do that without producing a wholesale release of dangerous terrorists. The decision to extend Geneva Conventions protection to terrorist detainees sends a hopeful signal that the days of going it alone are over for this White House. As the administration is discovering on a host of issues -- from North Korea to Darfur to Iran -- even a country with the resources of the United States can't put out all the fires around the world without the help of its friends. Creating an alternative legal universe in Guantanamo, however, alienated our allies and diminished U.S. standing around the world. We can't go it alone, and we can't flout the rules of international law one day and expect that the next day others will rally to support us in a just cause.

SOLVENCY EXT: TERRORISM/RESENTMENT
1.
WE NEED TO REVERSE DETENTION AND TORTURE POLICIES TO ADDRESS THE RESENTMENT FLOWING FROM CURRENT POLICIES Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.665-666. As General Counsel Mora has made clear, the most significant source of the animosity driving these foreign fighters is a "policy of cruelty." It is this policy of cruelty that the Obama Administration must reverse. There are initial indications that President Obama appears committed to that objective. However, it must be reiterated, as was noted above, that members of the Obama Administration have claimed that the President is intent on using the policy of rendition as a tool to fight terrorism. Much like the use of detention without legal process and the use of cruelty and torture in interrogations, rendition has also proven particularly controversial with U.S. allies and others around the world, precisely because rendition has been used to transfer individuals suspected of involvement in terrorist activities to countries that have tortured them. The International Commission of Jurists has recently issued a report calling on the U.S. and other nations to reverse these policies of torture, cruel and inhumane treatment, and arbitrary detention. The Report of the Eminent Jurists Panel on Terrorism stated: Practices referred to in the evidence given to the Panel -- torture and cruel, inhuman or degrading treatment, secret detentions, abductions, illegal transfers, refoulement, arbitrary, prolonged and incommunicado detention, unfair trials, and enforced disappearances -- are not legitimate responses to the threat of terrorism. Such practices are not only inconsistent with established principles of international law, and undermine the values on which free and democratic societies are based, but as the lessons of history show, they put the possibility of short term gains from illegal actions, above the more enduring long term harm that they cause. Steps must be taken nationally and internationally to ensure that the prohibition on torture and cruel, inhuman or degrading treatment, and other such serious human rights violations again become the unquestioned norm. The U.S. must make a clean break with these past policies of cruelty, torture, and detention without legal process. The parameters of what constitutes such a break are debatable, but achieving this break may require investigations and prosecutions. At a minimum, the U.S. must end these practices by U.S. personnel and ensure that the U.S is not implicated and compromised by cooperation with, solicitation to, or willful blindness to such practices conducted by others in an attempt to further its own goals. The U.S. cannot regain the moral high ground and eliminate the stain of our involvement in cruelty and torture by ritually washing our hands if the U.S. remains knee deep in the mud and blood of the world's dungeons. This is not only essential if the U.S. is to once again claim title to our nation's fundamental principles, it is a practical necessity if we want to avoid creating more terrorists than we can possibly capture or kill.
2.
WE NEED A CLEAN BREAK AGAINST INDEFINITE DETENTION TO RECLAIM THE MORAL HIGH GROUND Michael P. O'Connor and Celia M. Rumann, Associate Professors, Law, Phoenix School of Law, "Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism," WASHBURN LAW JOURNAL v. 48, Spring 2009, p.666-667. The lessons of Northern Ireland are important. The government's tactics in Northern Ireland are invoked as examples to emulate by the apologists for the U.S. government's policies of torture and arbitrary detention without any regard for the abject failure those policies represent. In presenting the International Commission of Jurists' Report on Terrorism, Mary Robinson, former President of Ireland and member of the Eminent Jurists Panel on Terrorism, knowingly reminded everyone of the true results of the detention and interrogation policies in Northern Ireland when she stated, "The police themselves said that [internment] was an unmitigated disaster." Likewise, the policies adopted by the Bush Administration in the GWOT have been an unmitigated disaster that will take us many years from which to recover. We have alienated many potential allies, encouraged recruitment of terrorists, and increased violence against our own citizens and allies. It will not be hard for al Qaeda to use the United States' past actions against it as recruiting tools. The U.S. must clearly and unequivocally reject the policy of detention without recourse to legal process and the cruelty and torture that have so often accompanied those detentions. The U.S. must renounce the hypocrisy of euphemism and legal justifications for practices all decent human beings know to be immoral and unjust. Only then can the U.S. hope to regain the moral high ground and begin to truly win the hearts and minds of Muslims and Arabs throughout the world.
SOLVENCY EXT: ANSWERS TO: "PREVENTIVE DETENTION JUSTIFIED"

1. PREVENTIVE DETENTION IS RISKY -- IS DIFFICULT TO PREDICT IF PEOPLE WILL COMMIT FUTURE CRIMES David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.696. At the same time, there are three important reasons to be deeply skeptical of preventive-detention regimes. First, preventive detention rests on a prediction about future behavior, and no one can predict the future. Decision makers all too often fall back on stereotypes and prejudices as proxies for dangerousness. Humility about our predictive abilities should counsel against preventive detention. Preventing terrorist attacks is a legitimate social goal, of course, but there are many ways to do so short of detention, such as securing borders, enhancing intelligence gathering, safeguarding nuclear stockpiles, and developing smarter foreign policy. Locking up human beings is one of the most extreme preventive measures a state can undertake; it should be reserved for situations where it is truly necessary. 2. GIVEN THE OPTION, PEOPLE WELL ERR ON SIDE OF DETENTION IN ANY PREVENTIVE DETENTION REGIME David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.696. Second, the risk of unnecessarily detaining innocent people is high, because decision makers are likely to err on the side of detention. When a judge releases an individual who in fact poses a real danger of future harm, and the individual goes on to inflict that harm, the error will be emblazoned across the front pages. When, by contrast, a judge detains an individual who would not have committed any wrong had he been released, that error is invisible -- and, indeed, unknowable. How can one prove what someone would or would not have done had he been free? Thus, the visibility of release errors and the invisibility of erroneous detentions will lead judges to err on the side of custody over liberty. 3. PREVENTIVE DETENTION UNDERMINES BASIC HUMAN FREEDOM -- SHOULD BE DISALLOWED WHEN AT ALL POSSIBLE David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.696-697. Third, preventive detention is inconsistent with basic notions of human autonomy and free will. We generally presume that individuals have a choice to conform their conduct to the law. Thus, we do not criminalize thought or intentions, but only actions. Respect for autonomy requires us to presume, absent a very strong showing, that individuals will conform their behavior to the law. To lock up a human being on the prediction that he will undertake dangerous and illegal action if left free is, in an important sense, to deny his autonomy. Thus, any consideration of preventive detention should begin with a strong presumption that society should deal with dangerous people through criminal prosecution and punishment, not preventive detention. We prohibit harmful conduct (including conspiracy to engage in such conduct), give notice that those who violate the prohibitions will be punished, and then hold responsible those who can be shown, in a fair trial, to have engaged in such activity. Given the dangers of preventive detention, we should depart from this model only where the criminal process cannot adequately address a particularly serious threat. 4. WE HAVE NO NEED FOR PREVENTATIVE DETENTION LAWS David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.694. Others hail the absence of such a preventive-detention law as a testament to the United States' commitment to individual liberty. The fact that the United States has survived for more than two centuries without employing a freestanding preventive-detention law for dangerous persons counsels strongly against adopting one now. Preventive-detention laws in other countries have often been abused to round up persons who pose little or no real danger. The United States itself has conducted three significant preventive roundups on domestic soil: the Palmer Raids of 1919-20, the internment of Japanese Americans and Japanese nationals during World War II, and the detention of several thousand Arab and Muslim foreign nationals within the United States in the aftermath of the terrorist attacks of September 11, 2001. In each period, not one person detained was identified as posing the threat that was said to justify the sweeps in the first place. These experiences provide strong support for those who oppose calls for preventive detention today.

COURTS SOLVENCY MODULE: 1AC
Note: you should use the initial Observation One (status quo) argument, and can also use the other advantages to the "USFG" version of the case. PLAN: THE SUPREME COURT OF THE UNITED STATES SHOULD ORDER THAT ALL U.S. MILITARY AND POLICE DETENTION FACILITIES IN AFGHANISTAN BE SHUT DOWN, HOLDING THAT THE FACILITIES VIOLATE CONSTITUTIONAL DUE PROCESS RIGHTS AND INTERNATIONAL LAW BECAUSE THE DETENTION FACILITIES DO NOT AFFORD JUDICIAL REVIEW OF THE LEGITIMACY OF A DETAINEE'S DETENTION. FUNDING AND ENFORCEMENT ARE GUARANTEED. OBSERVATION TWO: SOLVENCY A. LACK OF JUDICIAL REVIEW IS THE SOURCE OF DETAINEES ABUSES -- JUDICIAL REVIEW IS VITAL TO SOLVE THE PROBLEM Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. The denial of judicial review for detainees designated by the USA as "enemy combatants" in the so-called "war on terror" has been an integral part of an unlawful US detention regime operated over the past seven years. Treating detainees as perceived security threats and "intelligence assets" from whom information could be coerced rather than as human beings to whom legal process was due led not only to arbitrary detention, but also to detention conditions and interrogation techniques that violated international law, including the prohibition on torture or other cruel, inhuman or degrading treatment, secret detention and enforced disappearance, as well as the formulation of administrative review and trial procedures geared to admit information obtained under torture or other ill-treatment. Effective judicial review of executive detentions, coupled with fundamental reform of the legislative and policy framework under which such detentions have operated, would offer protection against such human rights violations, and a route to remedy for detainees, and should be fully guaranteed by the new administration and Congress as part of bringing the USA's policies and practices into line with international law and standards. The history of detentions at Bagram -- as well as the history of US detentions in Guantanamo and elsewhere in what the Bush administration called the "war on terror" -- serves to highlight the need for full and effective judicial review.
COURTS SOLVENCY MODULE: 1AC cont'd

B. COURTS ARE THE BEST ACTOR -- FIVE REASONS: 1) FORESTALL FUTURE ABUSE; 2) LONGER SHELF-LIFE; 3) LEARN LESSONS FROM PAST; 4) CREATE A BINDING RECORD; 5) INDEPENDENCE David Cole, Professor, Law, Georgetown University Law Center, "Judging Judicial Review: Marbury in the Modern Era: Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis," MICHIGAN LAW REVIEW v. 101, August 2003, p.2575-2577. Thus, when one takes a longer view of the role of courts in constraining emergency powers, the picture is less bleak than the conventional account admits. While most of the developments discussed above came too late to forestall civil rights and civil liberties violations when they were initially undertaken, they have the prophylactic effect of forestalling the same or similar measures in future emergencies. The judicial process is especially conducive to playing this role for several reasons. First, since emergency powers, and the disputes to which they give rise, tend to outlast the actual emergency, those powers can be reviewed by courts when the worst of the crisis is over. Thus, the Court's liberty-protective decisions in Milligan and Kahanamoku came when the wars were effectively over, and the Court's protective decisions from the Cold War period began after McCarthy had been censured and the height of anticommunist fervor had passed. The ability (and obligation) of courts to assess the legality of measures long after they have been adopted means that courts may bring more perspective to the question than those acting in the midst of the emergency. Second, the fact that legal decisions must offer a statement of reasons that then binds future cases contributes to the judiciary's ability to exert control over the next emergency. The obligation to create and to follow precedent means that judicial decisions are likely to have a longer "shelf life" than those of other branches of government. The lawyers' ability to distinguish the current emergency from prior ones, and the current emergency measure from those previously invalidated, means that the obligation to state reasons is no guarantee of future effectiveness in protecting rights, but precedents do tend to take certain options off the table. The government could not punish antiwar speech today, for example. Third, the common-law method facilitates a measured development of rules in the context of specific cases and permits the incorporation of lessons learned from the early and often most overreactive stages of emergencies. Once those lessons are learned and instantiated in Supreme Court decisions, they play an important role in precluding certain measures that were part of the government's arsenal in the prior emergency. In this sense, just as in Marbury, the Court's emergency-powers decisions may not help the parties immediately before it at the height of the controversy, but in the long run these decisions establish principles that are critical to checking future government abuse. Fourth, the formalities of the judicial process mandate the creation of an official record that may facilitate reaching a just result. The conviction in Korematsu was ultimately overturned on a writ of coram nobis because Korematsu was able to show, through access to government records, that the Justice Department had misled the courts about the strength of the evidence underlying its national-security concerns. As the warrant requirement demonstrates, record-keeping requirements permit evaluation of government actions after the fact. While judicial proceedings are not necessary to impose record-keeping requirements, the highly formalized judicial process itself creates a record that may make subsequent assessments, beyond the heat of the moment, more reliable. Fifth, and perhaps most important, federal courts are independent of the political process, and their institutional self-definition turns in significant part on that independence, especially when it comes to the interpretation and enforcement of constitutional rights. As a result, they are better suited to entertain claims challenging executive action than are Congress or the executive branch itself, and more likely to take politically unpopular positions than the political branches. While, as noted above, judges, like other government officials, are likely to defer to the executive branch on matters of national security, complete deference is likely to clash with their understanding of their role as judges. To be sure, judicial decisions are not the only forces that may constrain government actors in the next emergency. Developing cultural norms may also play a role. As noted above, Korematsu has never been formally overruled, but it is nonetheless highly unlikely that anything on the scale of the Japanese internment would happen again. The cultural condemnation of that initiative, reflected in Congress's issuance of a formal apology and restitution, has been so powerful that the option is a nonstarter even without controlling Supreme Court law. But even here, the legislative apology followed judicial decisions nullifying the convictions on writs of coram nobis. In addition, the formal requirements that judges give reasons that are binding on future judges means that judicial decisions are likely to play a more specific constraining function than the development of cultural norms. Indeed, John Finn has argued that the obligation to give reasons is constitutive of constitutionalism and underscores the necessity of judicial review to any meaningful system of constitutional law. Cultural norms and political initiatives are rarely as clear-cut as a legal prohibition, and their very contestability means that they are likely to exert less restraining force than a judicial holding. Court decisions are, of course, also contestable, but generally along a narrower range of alternatives. Thus, the conventional wisdom that courts perform poorly in crises should be qualified by the important proviso that, when viewed over time, judicial decisions do exert a constraining effect on what the government may do in the next emergency. C. THE PLAN OPENS LEGAL ACCESS FOR PRISONERS AROUND THE WORLD Warren Richey, "Next Flash Point Over Terror Detainees: Bagram Prison," CHRISTIAN SCIENCE MONITOR, 2-12-09, http://www.csmonitor.com/USA/Military/2009/0212/p01s01-usmi.html, accessed 4-10-10. The judge asked the government to disclose the number of such detainees. The government response is classified. Olshansky, Ms. Foster, and the other lawyers in the case have not been permitted to see it. The Bagram case is a potential blockbuster, legal analysts say. "Once you extend habeas protection by judicial decree to a detention center besides Guantanamo Bay, you theoretically open a door that would extend to any detention center by the United States anywhere else in the world," says Scott Silliman, executive director of Duke Law School's Center on Law, Ethics, and National Security.

COURTS ADVANTAGE MODULE: 1AC
ADVANTAGE ONE: AN ACTIVE JUDICIARY A. AFGHANISTAN'S DETENTION CENTERS OPEN THE DOOR TO EXECUTIVE TYRANNY Tom Curry, "Bagram: Is it Obama's New Guantanamo?" MSNBC, 6-3-09, www.msnbc.msn.com/id/31046933/, accessed 4-21-10. But law professor Kal Raustiala, the director of UCLA's Burkle Center for International Relations, said Bates' ruling was narrow enough that it would not significantly disrupt military operations. "Judge Bates ruled on only a handful of individuals, all of whom were brought to Bagram from elsewhere," he said. "Limited to these cases, the diversion is not that great." He said the crucial point is that Bates "is trying to take away the incentive to bring outsiders (those captured outside Afghanistan) to Bagram. He wants to avoid the problem posed by Guantanamo -- that the government is incentivized to move individuals there to avoid habeas and other rights." If Bagram or other foreign bases are beyond the reach of habeas corpus, "it creates a mechanism for executive tyranny in a world in which it is easy to fly someone in there on a suspicion," said Raustiala. B. GRANTING THE PRESIDENT TOO MUCH AUTHORITY RISKS DEVASTATING INTERVENTIONARY WARS Arthur M. Schlesinger Jr., Professor Emeritus, City University of New York Graduate Center, THE IMPERIAL PRESIDENCY, 2004, p.497-498. There is little more typically American than to despair of the republic. As early as 1802, Hamilton pronounced the Constitution a "frail and worthless fabric." Seventy years later Henry Adams declared that "the system of 1789" has "broken down." The dirges of our own day are hardly novel. But the constitutional strain imposed by chronic international crisis is new. Tocqueville's warning lingers. International crisis has given American Presidents the opportunity to exercise almost royal prerogatives. Some Presidents have exercised these prerogatives with circumspection. Others have succumbed to the delusion that American has been charged by the Almighty with a global mission to redeem fallen humanity. In The Imperial Presidency I doubted that a messianic foreign policy, America as world savior, was reconcilable with the American Constitution (see pages 163-166, 206-208, 298). Nearly two decades later, I conclude with the same question. When an American President conceives himself the appointed guardian of the world in which an eternal foreign threat requires a rapid and incessant deployment of men, weapons and decisions behind a wall of secrecy, the result can only be a radical disruption of the balance of the American Constitution. It is hard to reconcile the separation of powers with a foreign policy driven by an indignant ideology and disposed to intervene unilaterally and secretly everywhere around the planet. The Constitution must buckle under the weight of a vainglorious policy, aiming at the redemption of lesser breeds without law, relying on secret actions and duplicitous methods, involving the United States in useless wars and grandiose dreams. C. JUDICIAL REVIEW OF DETENTION POLICIES KEY TO JUDICIAL INDEPENDENCE AND CHECKING THE EXECUTIVE Center for Justice & Accountability et al., Brief of the Center for Justice and Accountability, The International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies as Amici Curiae in Support of Petitioners, Nicholas W. Van Aelstyn, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 30, January 14, 2004, lexis. While amici hail from many countries and have diverse backgrounds, all share an interest in defending the rights of individuals against the arbitrary actions of governments, particularly in countries that are emerging as democracies within the community of nations. One of the most important of these rights is the protection of individuals from indefinite detentions. Toward that end, they all recognize that a strong, independent judiciary with the power to review executive action is critical to the defense of individual rights. Amici also recognize the profound influence of the examples set by the United States and this Court. Defenders of democracy and human rights in the home countries of all individual amici look to the rule of law modeled by the United States. The maintenance and promotion of a strong and independent judiciary is key to the missions to which the institutional amici are dedicated, and to the struggles each of the individual amici face in their native countries. D. THE PLAN REVERSES CURRENT COURT DEFERENCE ON THE BASIS OF PLENARY POWER, WHICH INVITES ABUSE OF NON-CITIZENS Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.60. In each of these situations, the Court defers to Congress or the Executive because it claims that the political branches have exclusive jurisdiction over matters relating to foreign policy, military affairs, national security or war powers. The rationale is the same one used in the plenary power cases, and the end result is also the same: persons who are subject to U.S. law or to the consequences of U.S. foreign policy or military action but who are deemed Other by virtue of some combination of race, ethnicity, national origin, religion, political affiliation, or citizenship, cannot effectively challenge the government's actions because the judiciary refuses to hold the government accountable to either the Constitution or international law.
COURTS ADVANTAGE MODULE: 1AC cont'd

E. THIS DOCTRINE OF PLENARY POWER IS USED TO JUSTIFY THE SUBJUGATION OF IMMIGRANTS, INDIGENOUS PEOPLES, AND COLONIZED NATIONS Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.57. The previous section outlined how the plenary power doctrine is used to prevent the application of the Constitution and international law to government actions with respect to immigrants and colonized peoples, and described some of the resulting injustices. These problems do not disappear when the stated rationale is "military necessity" or "national security" rather than the identity of the people in question. The Constitution does not explicitly give the federal government power over any of the peoples subject to the plenary power doctrine. In the law relating to each of the subjects discussed above -- immigration, American Indian nations, and external colonies -- the power is said to derive from the primacy of Congress and the Executive in foreign affairs and the protection of the United States in times of war or national emergency. However, as we have also seen, this power, which is said to be based on the need for the political branches of government to deal with external threats, is consistently exercised with respect to peoples who are entirely at the mercy of American law and power. Almost exclusively, the groups subjected to the exercise of a plenary power unrestricted by the Constitution or international law are not those posing any threat to the United States, but those somehow deemed unworthy of otherwise applicable legal protections because of race, alienage, national origin, perceived political sympathies, or a "dependent" status imposed upon them for being insufficiently "civilized."

COURTS ADV: EXECUTIVE ABUSE/TYRANNY
1.
DETENTION POWERS NOW CLAIMED BY THE EXECUTIVE ARE BROAD AND SUBJECT TO ABUSE David Cole, Professor, Law, Georgetown, "Out of the Shadows: Preventive Detention, Suspected Terrorists, and War," CALIFORNIA LAW REVIEW v. 97, June 2009, p.705-706. Finally, the Bush administration cited the AUMF and its own executive power as authority to detain anyone it declared an "enemy combatant" -- whether captured at home or abroad. It initially held them incommunicado and denied them any hearings whatsoever, and it subjected them to cruel and inhuman coercive interrogation, and in some instances, torture. While the Bush administration initially described all those it held at Guantanamo as the "worst of the worst," it subsequently released more than 500 of them, suggesting that they might not have been so dangerous after all. Of the more than 500 released, the Pentagon claimed in January 2009 that 61 had returned to terrorism, a figure disputed by others as unfounded. As this overview demonstrates, existing law gives the government substantial options for detaining those whom it suspects of terrorist activity. At the same time, it also shows that existing authorities are susceptible to abuse and already afford the government too much unchecked power to detain. Within the United States alone, thousands of people were detained who posed no demonstrable threat. Accordingly, if reform is necessary, it should start by seeking to correct for the abuses evident in the wake of 9/11. While concerns about the need for preventive detention often rest on hypothetical scenarios, the case for reform of existing laws is supported by actual experience.
2.
INDEFINITE DETENTION UNDERMINES THE CONSTITUTION -- FEDERAL COURTS CAN SUCCESSFULLY TRY THE CASES Jonathan Hafetz and Mark Denbeaux, "Guantanamo Beyond Guantanamo," HUFFINGTON POST, 12-22-09, www.aclu.org/blog/national-security/guantanamo-beyond-guantanamo, accessed 4-21-10. Indefinite detention is threatening to become Guantanamo's legacy. Never before has the United States sought to imprison individuals permanently without charge merely because it suspects they may be dangerous. Such a regime is anathema to the Constitution, which requires that those accused of wrongdoing be brought to justice through a criminal trial. It is also profoundly un-American, and should alarm conservatives and liberals alike. Bringing suspected terrorists to trial in federal court is the right move. It honors the Constitution's guarantee of due process and maintains criminal trials as a check on the unlawful exercise of state power. Federal courts have also proven highly capable of trying suspected terrorists without sacrificing basic constitutional rights. They not only boast high conviction rates but have shown they are adept at preventing the disclosure of classified or other sensitive information. Holder's decision to prosecute the alleged 9/11 co-conspirators thus moves U.S. counter-terrorism policy in the right direction. But as long as the government retains the power to detain without trial, the impact of such decisions will be limited.
3.
EXECUTIVE POWER ENCROACHMENT IN THE WAR ON TERROR IS A SERIOUS THREAT TO OUR LIBERTY Erwin Chemerinsky, Professor, Law and Political Science, Duke University, " The Assault on the Constitution: Executive Power and the War on Terrorism," U.C. DAVIS LAW REVIEW v. 40, November 2006, p.19-20. Throughout American history, the government's response to threats has been repression. The war on terrorism is now over four years old and shows no signs of abating. Authorities have imprisoned some individuals without due process for nearly that long and have given no indication about possible release. These detentions have lasted longer than either World War I or World War II. In addition, the loss of freedom to average citizens has been enormous and, most disturbingly, there is no reason to believe that the country has been made any safer by the loss of liberty. There is no reason to believe that the government could not have fought terrorism just as effectively without ignoring the Constitution and the rule of law. The late Justice Louis Brandeis wrote: Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Justice Brandeis, of course, never knew John Ashcroft, Alberto Gonzales, or Donald Rumsfeld, but if he had, he could not have chosen a more apt description.
COURTS ADV: EXECUTIVE WARMAKING/LEADERSHIP

1. OVERSTRONG PRESIDENCY GUTS CONSTITUTION AND RISKS INTERVENTIONARY WARS John Alan Cohan, law clerk, Hon. Charles H. Carr. U.S. District Court Judge, Central District of California, "Legal War: When Does It Exist, and When Does It End?" HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW v. 27, Winter 2004, p.247-248 Diplomatic and other executive powers of the President, while falling short of declaring or waging war, can have a substantial likelihood of leading to war. One commentator has referred to the "ability of the President simply by his day-to-day conduct of our foreign relations to create situations from which escape except by the route of war is difficult or impossible." For example, President Wilson decided to rely on his own legal authority in ordering American merchant vessels to be equipped with guns, over the objections of Congress, and said later that he knew his action was "practically certain" to draw the United States into war. President Franklin Roosevelt took various actions, without congressional authorization, that were said to have pushed the nation toward World War II. On September 3, 1940, he made the famous "Fifty Destroyer Deal," a controversial exchange of fifty aging destroyers for a lease of British bases in the Western Atlantic. In April 1941, he sent troops to occupy Greenland, a Danish possession since 1814, under an agreement with the Danish Minister in Washington -- Denmark itself having been invaded by Germany on April 9, 1940. Two months later he took the strategic country of Iceland under American protection at that country's request; he authorized the occupation of Dutch Guinea, and issued his famous "shoot-on-sight" order to the Navy: When you see a rattlesnake poised to strike, you do not wait until he has struck before you crush him. The Nazi submarines and raiders are the rattlesnakes of the Atlantic. They are a challenge to our sovereignty. 2. STRONG PRESIDENT MAKES WAR -- PREEMPTION. Norman K. Swazo, Professor, Philosophy, University of Alaska, "The Duty of Congress to Check the President's Prerogative in National Security Policy," INTERNATIONAL JOURNAL ON WORLD PEACE v. 21 n. 4, December 2004, pp.21-62. Byrd's remarks are consonant with remarks delivered on 03 October 2002, during Senate debate on Senate Joint Resolution 46 authorizing the President's use of force against Iraq. Presenting a minority position, Byrd argued that the resolution before the Senate was "a product of presidential hubris," the resolution redefining "the nature of defense" and reinterpreting "the Constitution to suit the will of the Executive Branch:" "It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President's authority under the Constitution, not to mention the fact that it stands the charter of the United Nations on its head." Here Senator Byrd raises the question of the authority of the President vis-a-vis both constitutional law and international law (United States v. Curtis Wright notwithstanding). 3. STRONG PRESIDENCY UNDERMINES FOREIGN POLICY -- CLOSES OUT PUBLIC DELIBERATION AND CONSENSUS BUILDING Joel R. Paul, Professor, Law, University of Connecticut, "The Geopolitical Constitution: Executive Expediency and Executive Agreements," CALIFORNIA LAW REVIEW v. 86, July 1998, p.673-674. This Article is not another argument for giving more power to Congress. Rather, it is an argument against the reliance of judges on executive expediency as an interpretive mechanism. Admittedly, rejecting the discourse of executive expediency may result in an expansion of congressional power. However, my preference for shifting power back toward Congress is based upon neither a nostalgia for the past nor originalist claims about the Framers' intentions. Rather, I believe that, on balance, foreign policy works best when there is an opportunity for public deliberation and consensus building. As foreign relations power has shifted to the executive, the process of policy-making has become less open, visible, and responsive to democratic interest-group politics. Foreign policy will fail in the absence of strong public support, as even U.S. military leaders have acknowledged. The Constitution should be read to restrain the executive from intervening abroad without congressional support, not to isolate the United States from the world, but to ensure a more effective, coherent, and democratic foreign policy.

COURTS ADV: PLENARY POWER
1.
COURT DEFERENCE ON PLENARY POWER NOT JUSTIFIED Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.58-59. This is the same argument being made today with respect to actions taken against Muslims and persons of Middle Eastern or Arab ancestry. The Justice Department assures us that they are not interrogating or detaining hundreds of people because of hostility to them or their race (or religion), but because "we are at war with terror." The courts are, again, being urged to defer to the Executive because foreign affairs and national security are areas in which the political branches have plenary authority. However, when we look closely at both the World War II internment cases and the extensive use of this very justification for the exercise of plenary power over immigrants, American Indians, and residents of U.S.-controlled territories, it is difficult to accept as a legitimate exercise of the courts' responsibility to uphold the Constitution and, more fundamentally, the rule of law.
2.
USING PLENARY POWER TO JUSTIFY COURT DEFERENCE IN INTERNATIONAL LAW VIOLATIONS MAKES THE U.S. LOOK HYPOCRITICAL Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.59. Nonetheless, the United States is widely condemned for criticizing other countries' violations of international law while only complying with or enforcing those aspects of international law that coincide with U.S. interests. Although the Constitution explicitly directs federal courts to enforce international law, as we have seen in many of the examples discussed above, the Supreme Court frequently upholds statutes or executive actions which it acknowledges are in direct violation of treaties or customary international law. In such cases the Court falls back on a series of doctrines it has created, many of which are in essence extensions of the plenary power doctrine.
3.
COURT ALLOWS DISCRIMINATION AGAINST IMMIGRANTS BASED ON PLENARY POWER DOCTRINE Natsu Taylor Saito, Professor of Law, Georgia State University, "Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law," GEORGETOWN IMMIGRATION LAW JOURNAL v. 17, Fall 2002, p.51. The Court has continued to rely on the plenary power doctrine to uphold immigration laws and practices that violate both the Constitution and international law. As noted in Part IV, the plenary power doctrine was invoked to justify the exclusions, based on secret evidence, of Ellen Knauff, the wife of a U.S. citizen, and Ignatz Mezei, a permanent resident, as well as Mezei's indefinite detention. In 1984, the Eleventh Circuit cited the Chinese exclusion cases, Nishimura Ekiu, Mezei, and other plenary power "classics" to hold in Jean v. Nelson that noncitizens who have not been admitted continue to "have no constitutional rights with regard to their applications, and must be content to accept whatever statutory rights and privileges they are granted by Congress." In 1986, the Supreme Court refused to grant certiorari in Garcia-Mir, another Eleventh Circuit case which followed Jean and specifically excluded consideration of claims under international human rights law. The Justice Department has consistently relied on the plenary power cases to justify its use of secret evidence in removal proceedings against Arab Americans, and it will no doubt continue to do so in its defense of its current practices of arbitrary and indefinite detention and selective deportation.

COURTS SOLVE: DEFERENCE
1.
ELIMINATING TRIBUNALS CHECKS MILITARY CONTROL OF THE COURTS Jonathan Turley, Professor of Public Interest Law, George Washington University, "The Military Pocket Republic," NORTHWESTERN UNIVERSITY LAW REVIEW, v. 97, Fall 2002, p.110-111. The recent changes by the Bush Administration, however, serve to expand the governance authority of the military system and, in some respects, put greater emphasis on its separateness. The most obvious such change can be found in the establishment of the military tribunals. The Bush Administration asserted the authority to create an alternative legal system under the DOD for terrorism suspects held outside of the United States. By keeping these prisoners just on the other side of the border, President Bush has allowed the military to draft its own rules of evidence and procedure outside of the operations of either the U.S. Constitution or federal law. As a result, the military system would be used as an alternative to the federal courts. Thus, President Bush would decide which prisoners to send to a federal trial with full constitutional protections and which to send to a military tribunal. While this executive order is unlikely to be used against a sizable number of individuals, it represents a considerable conceptual change in the role of the military. The view contained in the order, and stated by various officials like Attorney General John Ashcroft, is that the federal system is functionally inadequate in handling such trials and that the military would do a better job because it is unconfined by the Constitution. After over a hundred years since Sherman's remarks, the military system is not only separate but, in this circumstance, the civilian system is actively yielding authority to the military system to carry out core functions of governance. The implications of the military tribunals for a Madisonian system are troubling. As noted earlier, one of the greatest points of distinction between the Roman model of separation and the currant military is the existence of a strong constitutional system of tripartite governance. The claim of executive authority to create an alternative legal system threatens the very essence of that system and could significantly change the view of citizens of the proper functioning of a Madisonian system. The tribunals use the very separateness of the military as its most vital asset in the trial of accused terrorists. Such a view is historically and legally questionable. However, if allowed to stand, the tribunals could open the door to greater circumvention of the civilian system and shift the center of gravity of the Madisonian system toward a semi-autonomous pocket republic. The effect on society seems predictably negative, resulting in a greater separation from the political system and from meaningful control by the electorate. If greater integration of the military would be beneficial to society, the Bush Order constitutes both a conceptual and practical shift in the opposite direction.
2.
INDEFINITE DETENTION DESTROYS LIBERTY AND THE RULE OF LAW -- UNDERMINES OUR CONSTITUTION AND THE VERY RULE OF LAW American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. Supreme Court Justice Antonin Scalia recently wrote that "freedom from indefinite imprisonment at the will of the Executive" represents the "very core of liberty." On this issue, Justice Scalia is exactly right. Indefinite detention without charge or trial violates the essence of American due process and the rule of law. Nevertheless, there are disturbing reports that President Obama and key members of his administration are considering continuing or even expanding the indefinite detention policies that began during the Bush administration. Under such a regime, people who have never committed a crime, or for whom the government lacks reliable evidence of criminal conduct, could be imprisoned indefinitely -- perhaps for their entire lives -- without charge or trial. Any system of indefinite detention without trial for suspected terrorists would be unnecessary, unwise, and unconstitutional. Individuals who pose a genuine danger to the United States can be prosecuted in our existing courts under our existing laws. And any statute that purports to authorize the long-term detention of suspected terrorists on the basis of perceived future dangerousness rather than past criminal conduct will likely be invalidated by our federal courts. Finally, a system of detention without trial for terrorism suspects would rightly be viewed by Americans and throughout the world as an illegitimate continuation of the Guantanamo detention regime that so damaged our credibility as a nation that adheres to the Constitution and the rule of law.

COURTS SOLVE: EXECUTIVE ABUSE
1.
JUDICIAL REVIEW IS NECESSARY TO CHECK EXECUTIVE ABUSE Amnesty International, "USA: Obama Administration Must Take New Approach on Bagram Detentions," 2-19-09, www.amnestyusa.org/document.php?id=ENGAMR510242009&lang=e, accessed 4-7-10. Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another. In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared. While the new US administration has committed itself to resolving within a year the cases of the approximately 240 detainees still held in Guantanamo, it has not yet said what its intentions are for US detentions in Afghanistan. Some 600 detainees -- the majority of them Afghan nationals, but also individuals of other nationalities -- are being held in US custody in the Bagram detention facility without access to the courts or legal counsel. Some have been held for years. The US authorities must now ensure that all US detentions in Afghanistan comply with international law.
2.
COURT ACTION KEY TO CHECKING A POLITICAL SLIPPERY SLOPE TOWARD UNCHECKED EMERGENCY POWERS Oren Gross, Associate Professor, Law, University of Minnesota, "Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?" YALE JAW JOURNAL v. 112, March 2003, npg. Accommodation of exigency considerations within the body of the legal system may induce the government to use its emergency powers expansively even when such use is uncalled for under the prevailing circumstances. If the power "is there," it is more likely to be used than when it has first to be put in place. Moreover, the existence of such constitutional dictates could encourage unscrupulous political leaders to foment an atmosphere of fear so as to be able to invoke these extraordinary constitutional powers. The danger that government will exercise permissible, special emergency powers "and wield [them] oppressively or selfishly, to the detriment of liberty, equality, or enduring national progress," may be "less inevitable but more dangerous." By the mere incorporation of a set of extraordinary governmental powers into the legal system, a weakening of that legal system will have already taken place and a dangerous threshold will have been crossed. The system will have embarked on its descent along a slippery slope as government will resort to special emergency powers in situations that are farther and farther away from a real exigency.

COURTS SOLVE: INTERNATIONAL LAW
1.
FEDERAL COURTS CAN TRY THE PRISONERS -- IMPORTANT TO UPHOLDING INTERNATIONAL RIGHTS American Civil Liberties Union, "Indefinite Detention Should End with the Closure of Guantanamo, Says ACLU," 9-25-09, www.aclu.org/human-rights_national-security/indefinite-detention-should-end-closure-guantanamo-says-aclu, accessed 4-21-10. "We are concerned by reports of possible delays in the closure of Guantanamo, which holds hundreds of men who have been imprisoned for years without charge or trial and has become a symbol of lawlessness and cruelty. The prison camp should be closed as soon as possible. "As important as when Guantanamo is closed, however, is how it is closed. Closing Guantanamo must include ending the policies that the prison has come to represent, such as indefinite detention without charge or trial. It would be unacceptable to close Guantanamo only to institute the same policies at similar facilities elsewhere in the world. "We are also deeply troubled by the reported suggestion by administration officials that, even after Guantanamo is closed, as many as 60 terrorism suspects -- including individuals with no connection to any conventional battlefield -- may continue to be held indefinitely without charge or trial. If there is evidence to support the allegation that these men have committed crimes, the government should file charges and prosecute them in federal courts, which are perfectly capable of handing terrorism cases while protecting fundamental rights. In a democracy, there is no room for a system of detention that allows human beings to be imprisoned indefinitely without charge or trial."
2.
UNFETTERED COURT ACCESS FOR DETAINEES IS A FOUNDATION OF INTERNATIONAL HUMAN RIGHTS LAW Amnesty International, "USA: Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review," 2-18-09, http://www.amnesty.org/en/library/asset/AMR51/021/2009/en/415f8464-cffe-4c25-a09a-0fce7e839709/amr510212009en.html, accessed 4-7-10. Everyone has the right to liberty and security of person. A government may only arrest, detain or imprison a person strictly in accordance with the law. Arbitrary detention, the antithesis of this legal obligation, is absolutely prohibited under international human rights law, which applies at all times. The notion of arbitrariness of detention under human rights law, in accordance with the UN Human Rights Committee's "constant jurisprudence", is "not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law". Detainee access to a court to challenge the lawfulness of detention is a basic requirement of international human rights law. No-one may be denied effective remedy for conditions of detention or treatment that violate their rights, such as the right to be free from torture or other ill-treatment. Among the Bagram detainees whose habeas corpus petitions are currently before Judge Bates in the US District Court are individuals who were allegedly subjected to enforced disappearance prior to being taken to Bagram. Enforced disappearance, like torture, is a crime under international law. Remedy and accountability remain absent in such cases.
3.
COURT-ORDERED COMPLIANCE IS KEY TO STRENGTH OF INTERNATIONAL LAW, COMPLIANCE OF OTHER NATIONS Human Rights Institute, Brief of Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners, Vaughan Lowe, Guy S. Goodwin-Gill, counsel, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 23, January 14, 2004, lexis.. The rationale for interpreting domestic law in harmony with international law loses none of its force when a fundamental human right is involved. The U.S. aims to serve as a model of human rights protection in the world community and recognizes that compliance with international law is indispensable in the pursuit of this objective. By conforming with minimal standards under international law, the U.S. not only protects the rights of the persons directly involved, but also meets the expectations of other nations, fostering goodwill and compliance. The expectations of nations with whom the U.S. shares common legal and political traditions are particularly poignant. Other countries, including those hostile to the U.S., should be denied the opportunity to cite U.S. violations as "excuses" for their own.

COURTS SOLVE: JUDICIAL INDEPENDENCE
1.
INDEFINITE DETENTION MODELED, THREATENS JUDICIAL INDEPENDENCE Center for Justice & Accountability et al., Brief of the Center for Justice and Accountability, The International League for Human Rights, and Individual Advocates for the Independence of the Judiciary in Emerging Democracies as Amici Curiae in Support of Petitioners, Nicholas W. Van Aelstyn, Counsel of Record, in Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States of America, et al., Respondents. Shafiz Rasul, et al., Petitioners, v. George W. Bush, et al., Respondents, Nos. 03-334, 03-343, 2003 U.S. Briefs 334; 2004 U.S. S. Ct. Briefs LEXIS 30, January 14, 2004, lexis. Amici are the Center for Justice and Accountability and the International League for Human Rights, both non-governmental organizations, and also the individuals Youk Chhang, Benjamin Cuellar, Vojin Dimitrijevic, Tahir Elci, Jakob Finci, Gustavo Gallon, Sudarshana Gunawardana, Chandra Kanagasabai, Mulya Lubis, Lia Mukhashavria, Ahmed Othmani, Dr. Aurora Parong, Dr. Marijan Pavcnik, Naly Pilorge, Carlos Slepoy Prada, Lakshman Kumar Upadhyaya, and Benjamin Hyun Yoon. While amici hail from many countries and have diverse backgrounds, all share an interest in defending the rights of individuals against the arbitrary actions of governments, particularly in countries that are emerging as democracies within the community of nations. One of the most important of these rights is the protection of individuals from indefinite detentions. Toward that end, they all recognize that a strong, independent judiciary with the power to review executive action is critical to the defense of individual rights. Amici also recognize the profound influence of the examples set by the United States and this Court. Defenders of democracy and human rights in the home countries of all individual amici look to the rule of law modeled by the United States. The maintenance and promotion of a strong and independent judiciary is key to the missions to which the institutional amici are dedicated, and to the struggles each of the individual amici face in their native countries.
2.
INDEPENDENCE ACTION KEY TO WORLD PEACE, SOLVENCY Michelle Austein, journalist, "Judicial Independence and Rule of Law Essential, Judges Say," WASHINGTON FILE, 8-16-06, http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2006&m=August&x=20060816144026hmnietsua0.700329, accessed 9-4-09. Washington -- "The best hope of living in peace and prosperity in the world today is if all nations abide by the notion of the rule of law," said Former U.S. Supreme Court Justice Sandra Day O'Connor August 14. "Laws properly adopted by a country must be applied, interpreted and enforced by an independent judiciary," O'Connor told a panel of judges in Islamabad, Pakistan, using video conferencing. Judges must be able to enforce laws, even in the face of political opposition, O'Connor said. They must be free to render fair and impartial judgments without fear of retaliation by other branches of government, she said. At the same multinational panel, Honorable Chief Justice of Pakistan Iftikhar Muhammad Chaudhry said that judicial independence is an essential element of a nation practicing good governance. The panel discussion featuring sitting and former judges from several countries was part of a four-day international judicial conference. The 91 participants from 43 countries, including 20 sitting chief justices, discussed common issues and shared ideas about judicial roles and powers. O'Connor said it is vitally important that lawyers and judges "speak out in support of the concept of independence of the judiciary and that they help us maintain it and retain it and apply it." Judge Robert Henry of the U.S. Court of Appeals for the Tenth Circuit, also speaking via video, encouraged judges to discuss the issues they commonly share, including tenure, resources, executive branch support and such internal problems as corruption. "It is very important for judges around the world to come together to exchange thoughts, exchange commentary, and to exchange tactics with each other for how we deal with these problems," Henry said. From the day they are appointed, judges, whether appointed to a lower court or the Supreme Court, must be independent, impartial and maintain no personal interest in a case, Chaudhry said. O'Connor added that judges must be bound to high ethical standards and be subject to discipline for violating these standards. One of the biggest concerns the judges mentioned was corruption. Controlling judges' corruption is one of the most important ways to ensure the independence of the judiciary, Chaudhry said. Many of Pakistan's courts enforce a judges' code of conduct to help fight corruption, he said. The conference coincided with the 50th anniversary of Pakistan's Supreme Court. See the Supreme Court of Pakistan's Web site for more information. More information about judicial independence is available on the Democracy Dialogues Independent Courts Web site.

COURTS SOLVE: RULING SNOWBALL
1.
FAVORABLE AFGHANISTAN RULING WOULD APPLY TO DETAINEES IN OTHER COUNTRIES Del Quentin Wilber, "U.S. Appeals Court Wary of Habeas Corpus Challenge by Detainees in Afghanistan," WASHINGTON POST, 1-8-10, www.washingtonpost.com/wp-dyn/content/article/2010/01/07/AR2010010703205.html, accessed 4-10.10. An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court. The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.
2.
FAVORABLE RULING WOULD APPLY TO MILITARY DETAINEES AROUND THE WORLD Del Quentin Wilber, "U.S. Appeals Court Wary of Habeas Corpus Challenge by Detainees in Afghanistan," WASHINGTON POST, 1-8-10, www.washingtonpost.com/wp-dyn/content/article/2010/01/07/AR2010010703205.html, accessed 4-10.10. Attorneys for the Bagram detainees say that the only way to ensure that the government is properly holding them is for a judge to hear their case, they say. During oral arguments, Judges David S. Tatel and Harry T. Edwards pushed one of the attorneys for the detainees, Tina Monshipour Foster, to craft an argument that would limit the reach of habeas corpus to just her clients at Bagram. They wondered whether granting such rights to the Bagram prisoners would extend habeas corpus to military bases across the globe. Such a ruling could be difficult to align with Supreme Court precedent, the judges suggested.
3.
RULING FOR MAQALEH WOULD PROVIDE ACCESS FOR ALL DETAINEES Dawinder Sidhu, attorney, "Obama's Looming Legal Trap in Afghanistan," SALON, 4-6-10, www.salon.com/news/feature/2010/04/06/bagram_guantanamo_habeas_corpus/index.html, accessed 4-21-10. At issue is the precarious reach of the writ of habeas corpus -- the time-honored legal right to petition a court to ensure that the executive has sufficient cause to detain an individual. In 2008, the Supreme Court held in Boumediene v. Bush that Guantanamo detainees are entitled to habeas. As the Boumediene case resolved only whether habeas applies to detainees at Guantanamo -- and not other international post-9/11 American facilities -- it remains unclear whether foreign detainees at Bagram can invoke the habeas writ. Indeed, this very question is at the heart of al Maqaleh v. Obama -- an ongoing legal battle between several current Bagram detainees and the Obama administration. Because these Bagram detainees have not yet been accorded the habeas right, there is concern that the administration's proposal would place all prospective foreign terrorism suspects beyond the rule of law, without fundamental habeas protections. In reality, though, this could actually open the door to the al Maqaleh court ultimately holding -- against the government -- that habeas does extend to foreign detainees in Bagram. In other words, in resolving an important policy question, the administration could seriously weaken its legal case.

COURTS SOLVE: TORTURE/DETAINEE ABUSE
1.
LACK OF JUDICIAL ACCESS CAUSES TORTURE AND ABUSE Mukul Sharma, "Bagram, the Other Guantanamo," THE HINDU, 1-6-10, http://beta.thehindu.com/opinion/op-ed/article76282.ece, accessed 4-21-10. As at Guantanamo, in the absence of judicial oversight the detentions in Bagram have been marked by torture and other kinds of ill-treatment of detenus. Agents of the Federal Bureau of Investigation (FBI) deployed in Afghanistan between late-2001 and the end of 2004 reported personally having observed military interrogators in Bagram and elsewhere employing stripping , sleep deprivation, threats of death or pain, threats against detenus' family members, prolonged use of shackles, stress positions, hooding and blindfolding other than for transportation, use of loud music, use of strobe lights or darkness, extended isolation, forced cell extractions, use of and threats of use of dogs to induce fear, forcible shaving of hair for the purpose of humiliating detenus, holding detenus in an unregistered manner, sending them to other countries for "more aggressive" interrogation and threatening to take such action.
2.
JUDICIAL REVIEW IS VITAL TO PREVENTING ABUSE OF DETAINEES AL JAZEERA, "US Expands Prison in Afghanistan," 2-20-09, http://english.aljazeera.net/news/asia/2009/02/200922041829271189.html, accessed 4-7-10. Amnesty International has urged Obama to continue its break from his predecessor's "unlawful detention policies" by ensuring that "all US detentions in Afghanistan comply with international law" and giving the detainees access to US courts. "Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the human rights group said. "In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses -- even children have not been spared."
3.
JUDICIAL REVIEW STOPS TORTURE Amnesty International USA, Guantanamo, and Beyond: The Continuing Pursuit of Unchecked Executive Power, May 13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005 Judicial review of the lawfulness of detentions is a fundamental safeguard against arbitrary detention, torture and ill-treatment, and "disappearance". Unsurprisingly, then, with the US courts having been kept out of reviewing the cases for more than three years, there is evidence that all these categories of abuse have occurred at the hands of US authorities in the "war on terror". Indeed, Amnesty International believes that abuses have been the result of official policies and policy failures and linked to the executive decision to leave detainees unprotected by not only the courts, but also by the prohibition on torture and other cruel, inhuman or degrading treatment as defined under international humanitarian and human rights treaties binding on the USA. The US administration still does not believe itself legally bound by the Geneva Conventions in relation to the detainees in Guantanamo, Afghanistan and in secret locations, by customary international law, or by the human rights treaty prohibition on the use of cruel, inhuman or degrading treatment in the case of foreign detainees in US custody held outside of US sovereign territory. Nor has it expressly abandoned the notion that the President may in times of war ignore all the USA's international legal obligations and order torture, or that torturers may be exempted from criminal liability by entering a plea of "necessity" or "self-defence" (see below).
4.
REVIEW IS VITAL TO STOPPING TORTURE Amnesty International, USA, Human Dignity Denied, Torture and Accountability in the 'War on Terror,' October 27, 2004, http://web.amnesty.org/library/Index/ENGAMR511452004 Central to the USA's "war on terror" detention policy has been to keep the detainees away from the courts. The administration chose Guantanamo precisely because it believed that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantanamo Bay Naval Base, Cuba," although it recognized that the issue was not "definitely resolved" in law. It is clear that the US administration has seen its own judiciary, as well as international law, as an unwanted check on its activities. A key safeguard against torture is for prisoners or others acting on their behalf to be able to invoke the power of the courts to challenge the legality of the detention and otherwise ensure the prisoner's safety. It can also serve as a safeguard against "disappearances" by asking the courts to locate a person who has "disappeared".
COURTS SOLVE: ANSWERS TO: "CIVILIANS MAKE POOR DECISIONS"

1. MILITARY LEADERS ARE NO BETTER AT MAKING DECISIONS ABOUT WAR THAN ARE CIVILIAN LEADERS -HISTORY PROVES Mackubin Thomas Owens, Professor, Strategy and Force Planning, Naval War College, "Soldier's Voice," NATIONAL REVIEW, September 23, 2002, npg. There are two problems with this argument. The first is that the judgments of soldiers about a given war or course of action have not proved to be uniformly superior to the judgments of civilians. The second is that the U.S. system of constitutional government vests the decision to use force in the hands of elected civil authorities, not soldiers, no matter how experienced in war the latter may be. If the military experience of a leader is a prerequisite for success during time of war, then Jefferson Davis should have been a better war leader than Abraham Lincoln. Franklin Roosevelt should have been an abject failure as the American leader during World War II. A military background is no guarantee of strategic wisdom. The historical record illustrates that the judgment of soldiers is not always on the money. As chairman of the Joint Chiefs of Staff in 1990, Colin Powell preferred sanctions against Iraq to the use of force. Eliot Cohen, author of Supreme Command: Soldiers, Statesmen and Leadership in Wartime, pointed out in the Post the day after Webb's article appeared that George Marshall, the greatest soldier-statesman since Washington, opposed arms shipments to Great Britain in 1940. Most of the policymakers who involved the United States in Vietnam were veterans of World War II. 2. HARM ARGUMENTS JUSTIFYING DEFERENCE ARE CIRCULAR Jonathan Masur, Law Clerk, Honorable Richard A. Posner, Seventh Circuit Court of Appeals, "A Hard Look or a Blind Eye: Administrative Law and Military Deference," HASTINGS LAW JOURNAL v. 56, February 2005, p.506-507. Finally, to claim that executive actors deserve deference in wartime cases because of the magnitude of risk at hand is to begin the inquiry by begging the fundamental question. Frequently, the Executive's asseveration of imminent harm constitutes but another administrative determination that may itself not deserve significant deference under applicable law. Arguments for deference based upon the present danger thus quickly devolve into a familiar circularity. Indeed, the government's assessment of harm (and the amount of deference that assessment warranted) was the primary factual question at issue in Detroit Free Press and North Jersey Media. The courts in those cases decided the appropriate level of deference to award the Executive's factual claims before they analyzed what type or degree of risk the country might actually face from unsealed "special interest" deportation hearings. Furthermore, there exists no internal mechanism to prevent executive branch actors from simply alleging generalized threats to national security at the outset of any wartime adjudication. Indeed, the very classification of "wartime cases" signals intuitive acceptance by the judiciary of such reasoning. Credulous acceptance of such claims by the judiciary, followed by excessive deference to the military's formulation of whatever factual issues might remain, effectively bars the judiciary from imposing meaningful scrutiny upon the substantive merits of a case. Far from justifying an habitual judicial posture of deference, continued operation of this circular algorithm threatens to truncate wartime adjudications before they have meaningfully begun. 3. EXECUTIVE AGENTS MAKE POOR DECISIONS IN RESPONDING THE NATIONAL SECURITY THREATS Christina E. Wells, Enoch N. Crowder Professor of Law, University of Missouri-Columbia, "Questioning Deference," MISSOURI LAW REVIEW v. 69, Fall 2004, p.907-908. The psychology of risk assessment -- i.e., the study of how people determine the likelihood of uncertain events -- is relevant to understanding executive officials' overreaction to perceived threats in times of crisis. Faced with a potentially catastrophic threat to national security, officials must decide whether and how to react based upon a complex balancing of factors such as the nature of the risk, its likelihood, and the possible advantages (such as safety) and disadvantages (such as curtailment of liberties). Psychologists know that use of cognitive shortcuts can skew the risk assessment process into overestimating the likelihood of perceived catastrophic events. This is especially true when people make decisions in an atmosphere of fear and intense social pressure. In times of crisis, government actors can err by misperceiving that certain groups pose a danger or by acting on the erroneous perceptions of others. Occasionally, they might even fan the flames of such misperception to obtain public support for their own agendas. As discussed below, history bears out this pattern of skewed decision making and suggests that, contrary to the claim of proponents of judicial deference, executive officials are not inherently adept at assessing or reacting to national security threats.
COURTS SOLVE: ANSWERS TO: "JUDICIAL INCOMPETENCE"

1. FEDERAL COURTS HAVE A STRONG TRACK RECORD IN TRYING TERROR CASES American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. Federal criminal courts and federal prisons work, even for international terrorism cases. the Justice Department has charged, tried, and convicted approximately 200 defendants for international terrorism crimes, using the same federal courts that hold criminal trials every day. these defendants have ranged from a coconspirator in the 9/11 attacks to persons convicted for their roles in the 1993 World trade Center bombing and the bombing of U.S. embassies in Africa. Acting within the rule of law and applying federal criminal law, the Justice Department was able to obtain convictions that resulted in long prison sentences for these convicts -- and the Federal Bureau of Prisons has made sure that there have been zero escapes. there is no reason to believe that the Justice Department cannot convict and imprison others who committed acts of terrorism or other serious crimes. 2. WE CAN TRUST THE CRIMINAL JUSTICE SYSTEM TO WORK WELL ENOUGH Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.589-590. What I take from this is that, yes, there is a danger of abuse, there is a danger of people being detained without their criminal justice rights being respected, but the last thing you want to do is to legitimize that by writing into law the power to do that. I would much rather fight the battle with the government twisting the law than fight the battle with the government simply applying the law. Again, I don't take this as being a legitimate argument for preventive detention, I take it as a legitimate caution that we have to look for ways in which the law can be twisted even in its current form, but I don't take it as a justification for easing up the ability of the government to hold people without a criminal trial. In other words, I basically adopt the adage "if it ain't broke, don't fix it." The criminal justice system is not perfect, but it works decently and it is much more dangerous, in my view, to authorize preventive detention than to simply use the criminal justice system as a way of going after the people who are in Guantanamo. I recognize there still may well be a handful of people who can't be prosecuted for whatever reason, but I suspect the danger of letting those people go is much less than the danger that comes from the animosity that is generated by holding people for years on end without trial in Guantanamo or even in its domesticized equivalent if Guantanamo is basically moved on shore through a preventive detention regime. 3. JUDGES ARE KNOWLEDGEABLE ENOUGH TO RULE ON MILITARY MATTERS Phillip Carter, "Judicial Deference to the Military: How It Will Affect Court Cases Involving Gay Rights, and War on Terrorism Policies," FINDLAW, July 15, 2003, http://writ.news.findlaw.com/commentary/20030715_carter.html, accessed 4-12-10. Does the judicial deference doctrine still make sense today? For a number of reasons, it may not be as well-justified as it once was. Recall that one early justification for the doctrine was the Executive Branch's superior national security knowledge and expertise. In the modern era, however, judges are more knowledgeable about foreign policy than they may once have been. The information asymmetry which used to exist between the Executive and Judicial branches has been wiped away, thanks to CNN and the rise of the modern media establishment. Moreover, to the extent that there are gaps in judges' knowledge, the executive branch can provide them with sensitive national security information through various means spelled out in the Classified Information Procedures Act. Judges can review this information "in camera" -- outside the presence or access of the parties -- if necessary to preserve secrecy and security.

COURTS SOLVE: ANSWERS TO: "LEAKS"
1.
SAFEGUARDS, EMPIRIC RECORD DENY LEAKS CLAIMS Juan R. Torruella, " On the Slippery Slopes of Afghanistan: Military Commissions and the Exercise of Presidential Power," UNIVERSITY OF PENNSYLVANIA JOURNAL OF CONSTITUTIONAL LAW v. 4, May 2002, p.689-690 Furthermore, such a conclusion runs contrary to experience, plain facts, and common sense. Trials of this nature have been taking place in United States District Courts with some regularity, with an almost unbroken success record for the government. There have been no allegations that these trials pose any danger to the safety or security of the nation, although the government is held to a higher standard of proof than is contemplated by The Order. None of these allegations seem a sufficient justification, under the Constitution, to dispense with the requirements of due process under the Fifth Amendment. Furthermore, any fear that classified information may be divulged by virtue of the nature of these trials, thus compromising American intelligence sources and adversely affecting national security, a legitimate concern, has been addressed by Congress through the passage of the Classified Information Procedures Act in 1980. These procedures have been used on numerous occasions in security-sensitive trials, again most of which the government has won.
2.
COERCED NATURE OF EVIDENCE IS NOT A JUSTIFICATION FOR NOT PROVIDING A TRIAL American Civil Liberties Union, "Indefinite Detention," 9-8-09, www.aclu.org/national-security/indefinite-detention, accessed 4-21-10. Coerced evidence should not be a basis for detention. Proponents of a system of indefinite detention, including President Obama, have argued that the criminal justice system may be incapable of adjudicating some terrorism cases because the necessary evidence is too "tainted" by coercion to be admissible in U.S. courts. But evidence obtained through torture or coercion is inadmissible not only because it was secured immorally and illegally, but also because it is inherently unreliable.
3.
MULTIPLE TRIALS PROVE OUR CLAIMS Laura K. Donohue, "Bias, National Security, and Military Tribunals," CRIMINOLOGY & PUBLIC POLICY v. 1 n. 3, July 2002, ASP. Second, there is nothing wrong with using the ordinary criminal system to try suspected terrorists. In the Southern District of New York, Mary Jo White, the federal prosecutor, obtained a 100% conviction rate for the 26 jihad conspirators accused of complicity in previous attacks both in the United States and against American personnel and property overseas. The six major trials and handful of minor ones demonstrated that the criminal justice system had adequate procedures for dealing with classified information. This was, precisely, the point of the Classified Information Act: to protect national security.
4.
WORLD TRADE CENTER, OKLAHOMA CITY TRIALS DISPROVE SECRECY CLAIMS John Lichtenthal, "The Patriot Act and Bush's Military Tribunals: Effective Enforcement or Attacks on Civil Liberties?" BUFFALO HUMAN RIGHTS LAW REVIEW v. 10, 2004, p.420-421. Supporters of the military tribunals point out the positives of the procedures. Bruce Fein, former Associate Deputy Attorney General under the Reagan administration, noted, "at time of warfare, expedition is critical." Secrecy is another advantage, as it would prevent the government from making public sensitive or classified information. In the words of John Ashcroft, "frankly, you don't want to compromise intelligence information in times of war." Former Solicitor Robert Bork noted, "an open trial -- covered by television, would be an ideal stage for Osama bin Laden to spread his propaganda to all the Muslims in the world." The military tribunals would also be beneficial to jurors, as they would be protected from reprisals from terrorists. But many of these advantages can be achieved through other means. The Classified Information Procedures Act outlines how classified information could be handled at trial. Furthermore, efforts were taken at the 1993 World Trade Center bombing trial and the McVeigh trial to protect classified information. For example, in the McVeigh trial: the news media sought access to a variety of documents that had been filed under seal. In granting partial access, Judge Matsch specifically articulated the importance of open criminal trials. Extensively quoting Chief Justice Berger, he stressed the "crucial prophylactic aspects" of public trials and the vital importance of "'satisfying the appearance of justice' -- by allowing people to observe it." At the same time, Judge Matsch carefully identified and articulated certain circumstances where there is no tradition of access and where secrecy is necessary. Provisions were also made at the 1993 World Trade Center bombing trail to protect the anonymity of the jurors.
COURTS SOLVE: ANSWERS TO: "SECRECY/SECURITY CONCERNS"

1. FEDERAL COURTS HAVE FAR MORE EXPERIENCE AT DEALING WITH TERRORISM-RELATED CASES American Civil Liberties Union, "Discredited Military Commissions Resume Despite Persistent Flaws," 4-27-10, www.aclu.org/national-security/discredited-military-commissions-resume-despite-persistent-flaws, accessed 4-27-10. "Despite recent legislative improvements, the military commissions are incapable of delivering outcomes we can trust. It is a failed system that should have been shut down years ago," said Jameel Jaffer, Director of the ACLU Center for Democracy. "Prisoners accused of terrorism-related crimes should be charged and prosecuted in the federal criminal courts, not in a system that is untested and unreliable and that is perceived by most of the world as illegitimate." Unlike the federal criminal courts, the military commissions are new and lack experience in dealing with complex international terrorism trials. Since 9/11, the military commissions have completed only three terrorism-related cases, with two of three convicted defendants already released. Federal courts, on the other hand, have successfully completed over 400 terrorism-related cases. And despite a missed deadline, no rules have yet been promulgated to comply with the latest military commissions legislation. Basic questions about how the proceedings will operate remain unanswered, such as whether a defendant in the military commissions can plead guilty to a death penalty charge. 2. THERE IS NO MILITARY/SECURITY REASON TO NOT EXTEND HABEAS CORPUS RIGHTS TO BAGRAM PRISONERS Andy Worthington, journalist, "What has Happened to the Geneva Conventions? Is Bagram Obama's New Secret Prison?" COUNTERPUNCH, 9-16-09, www.counterpunch.org/worthington09162009.html, accessed 4-7-10. Despite fierce opposition from Obama's Justice Department, which clung to the line taken by the Bush administration, Judge Bates ruled in April that Boumediene v. Bush -- the Supreme Court ruling last June, which granted constitutionally guaranteed habeas corpus rights to the prisoners in Guantanamo -- extended to foreign prisoners "rendered" to Bagram, because "the detainees themselves as well as the rationale for detention are essentially the same." He added that, although Bagram is "located in an active theater of war," and that this may pose some "practical obstacles" to a court review of their cases, these obstacles "are not as great" as the government suggested, are "not insurmountable," and are, moreover, "largely of the Executive's choosing," because the prisoners were specifically transported to Bagram from other locations. Judge Bates was undoubtedly correct, for two reasons: firstly, because, as I explained at the time, "only an administrative accident -- or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantanamo -- prevented them from joining the 779 men in the offshore prison in Cuba"; and secondly, because he refused to extend habeas rights to an Afghan prisoner "rendered" to Bagram from the United Arab Emirates in 2002 -- and, by extension, to the rest of the Afghans in Bagram, seized in Afghanistan, who constitute all but 30 or so of the 650 men held in the prison -- primarily because he agreed with the government's claim that to do so would cause "friction" with the Afghan government regarding negotiations about the transfer of Afghan prisoners to the custody of their own government. 3. JUDICIAL PROCEDURES ADDRESS ANY SECRECY PROBLEMS WITH TRIALS Kenneth Roth, Executive Director, Human Rights Watch, "Why the Current Approach to Fighting Terrorism is Making Us Less Safe," CREIGHTON LAW REVIEW v. 41, June 2008, p.588. One serious concern is that a criminal prosecution will force the government to reveal secret sources and methods. Of course a classic defense approach is to do this. If you are defending Khalid Sheikh Mohammed you want to force the government to reveal every single secret there is, hoping that therefore the government faces this choice between giving up its deepest, darkest secrets or letting Khalid Sheikh Mohammed go. Because of that kind of "gray mail" as it's referred to, there is a statute called the Classified Information Procedures Act (CIPA), which was adopted really over twenty years ago in order to allow judges to balance the defendant's right to confront evidence against him or herself with the government's legitimate interest in secrecy. It allows the government to hand over evidence, say only to a defense attorney who has been cleared to receive that evidence. Or it allows the judge to redact irrelevant information that may be super-sensitive but still give the defendant the gist of the testimony against him. Under CIPA, the government in fact has never, since 9-11, had to drop a terrorism case despite dozens of cases that is has pursued. If you talk to the judges who were involved they say that it creates a very fair balance between the right to confront and the ability of the government to preserve secrets. Again, this suggests that criminal prosecution is possible, and that preventive detention is not necessary.
COURTS SOLVE: ANSWERS TO: "UNDERMINE EXECUTIVE"

1. COURTS DON'T OVERBURDEN EXECUTIVE FLEXIBILITY Christina E. Wells, Enoch N. Crowder Professor of Law, University of Missouri-Columbia, "Questioning Deference," MISSOURI LAW REVIEW v. 69, Fall 2004, p.948. Second, one could argue that judicial review unreasonably burdens the executive's ability to act quickly and decisively in response to an emergent situation. National security emergencies are presumably the last instance in which we want such burdens on executive decision making. While this argument is reasonable as it pertains to executive decisions regarding the actual prosecution of a war -- i.e., decisions to invade a country, troop movements -- the historic patterns described above never involved such decisions. Rather, they involved decisions to pursue groups or individuals via domestic criminal or administrative measures, decisions made over long periods of time. Such actions taken in the name of national security rarely require quick and decisive action. The argument for executive flexibility thus carries less weight in this context than when military decisions are involved. Furthermore, given what we know of past skewed decision making, we may actually want to slow down that decision-making process when restricting civil liberties. 2. JUDICIAL REVIEW ENHANCES THE EXECUTIVE -- INTERBRANCH COOPERATION, WIDER ACCEPTANCE Christina E. Wells, Professor of Law, University of Missouri-Columbia School of Law, "SYMPOSIUM: Questioning Deference," Missouri Law Review, v. 69, Fall 2004, p.946. The judicial system is a powerful institution. In the context of resolving constitutional issues, many people, the Court included, believe that the judicial system has the final (and, thus, most powerful) say. To be sure, executive officials, past and present, have asserted that national security matters are particularly within the executive branch's ambit, suggesting that they do not share this view of the Court's legitimacy. Even so, executive officials rarely flout the Court's authority, instead preferring to enlist the Court's support (which the Court often willingly provides). Executive officials might prove more willing to deny the Court's authority if it engaged in more rigorous review of executive decisions regarding national security. However, popular support for the institution of judicial review would likely preclude outright executive defiance and could eventually spur acceptance. This might be especially true if the Court's constitutional standards of review focused more explicitly on decision-making processes, thus avoiding the impression that the Court was substituting its judgment for the executive's. The Court is also well-informed within the meaning of accountability literature. Importantly, being well-informed does not require expert knowledge on particular issues but simply that the audience be not easily tricked. Thus, judges need simply be able to inform themselves to the point where they understand generally the issues involved. Briefs, oral argument, and other evidentiary devices already aid courts in educating themselves and should be able to do so for accountability purposes as well. 3. JUDICIAL REVIEW ENHANCES EXECUTIVE DECISION-MAKING -- ACCOUNTABILITY, LESS REPUTATIONAL PRESSURE Christina E. Wells, Professor of Law, University of Missouri-Columbia School of Law, "SYMPOSIUM: Questioning Deference," Missouri Law Review, v. 69, Fall 2004, p.939-940. These findings suggest that accountability may deter government decisions based upon skewed risk assessment in times of crisis. To the extent that executive officials themselves overestimate a potential threat, requiring them to account for their decision in a formal way -- by identifying the alleged threat and explaining why that threat is substantial and the government's action necessary -- could lead to improved initial decision making. Accountability, by reducing pressure toward uniformity, may also enable public officials to resist reputational pressures causing them to bow to public hysteria. Furthermore, accountability may rein in government officials who act as availability entrepreneurs because such officials, presumably desiring to avoid embarrassment, would more carefully evaluate the wisdom of purely political actions. B. Judicial Review as a Mechanism of Accountability One can make a strong argument that judicial review is generally a viable mechanism for executive branch accountability during national security crises. The judicial forum, with its fact-finding capabilities, requirements of proof, and requirement that the government justify incursions on civil liberties, fits well within the general definition of accountability as requiring a specific, public accounting of one's decisions. Consistent with the psychological definition, positive or negative consequences attach to executive officials' accounting of their behavior in the form of a judicial ruling for or against the government.

DETENTION CASES ARE TOPICAL
1.
DETENTION IS PART OF THE MILITARY MISSION Human Rights First, UNDUE PROCESS: AN EXAMINATION OF DETENTION AND TRIALS OF BAGRAM DETAINEES IN APRIL 2009, November 2009, p.5. The United States, along with NATO allies and the Afghan government, is engaged in an armed conflict with insurgent groups in Afghanistan. The power to detain is an essential element of armed conflict, serving both the security interest of the detaining authority and the humanitarian interest of the detainee, who might otherwise be killed. There is a complex interplay between legal and practical considerations regarding detention in an armed conflict fought on foreign soil against non-state armed groups. The current U.S. strategy in Afghanistan recognizes the benefits of consent from, and the cooperation of, the local population and authorities in all aspects of the war effort, including detention. Increasing the Afghan stake in detention is already a part of the U.S./ISAF strategy in Afghanistan.
2.
THE DETAINEES ARE CONTROLLED BY MILITARY POLICE CORRECTIONS TODAY, "My Time in an Afghan Prison," December 2008, www.thefreelibrary.com/My+time+in+an+Afghan+prison.-a0193145673, accessed 4-15-10. Prior to Sept. 11, it was not a common practice for U.S. Army correctional specialists to mentor others on confinement operations. The Military Police (MP) Corps, the branch of the U.S. Army responsible for the custody and control of U.S. military prisoners and enemy prisoners of war, is exclusively charged with the confinement mission. Correctional specialists are stationed at Army and sister service correctional facilities across the U.S. and overseas in Korea, Germany, Cuba, Iraq and Afghanistan. Until recently, correctional specialists were normally assigned to non-deployable units. That changed after U.S. troops began combat operations in Afghanistan in November 2001. The MP Corps' mission to conduct detention operations grew exponentially during the spring of 2002 in support of the global war on terror. Suddenly, MP Corps officers, noncommissioned officers and soldiers who had previously focused on domestic corrections missions, were required to rapidly understand and instruct enemy detention operations to coalition partners, allies and soldiers in the Army National Guard, Army Reserves and sister service elements. This training mission was essential to standardize the conduct of confinement operations within the Department of Defense, the agency responsible for teaching our soldiers and allies proper confinement procedures and preventing incidents like Abu Ghraib.
3.
THE PRISONS ARE ON MILITARY BASES William Fisher, "Afghan Prison Looks Like Another Guantanamo," IPS, 1-14-08, www.ipsnews.net/news.asp?idnews=40786, accessed 4-15-10. It is a prison located on the U.S. military base at base in the ancient city of Bagram near Charikar in Parvan, Afghanistan. The detention centre 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 some 630 prisoners -- close to three times as many as are still held at Guantanamo.
4.
DETENTION IS A FUNCTION OF POLICE PRESENCE Devallis Rutledge, "Justifying Temporary Detentions: How Much Suspicion is Enough," POLICE, March 2010, www.policemag.com/Channel/Patrol/Articles/Print/Story/2010/03/Justifying-Temporary-Detentions.aspx, accessed 4-15-10. A detention occurs when an officer has said or done something that would cause a reasonable innocent person to believe he is not free to disregard the police presence and go about his business. (Florida v. Bostick) A detention must be justified by "reasonable suspicion" of criminal activity on the part of the detainee. Under this standard, it is counter-productive error for officers to speak of "PC for the stop." Probable cause is never constitutionally required for detentions. (US v. Sokolow)
5.
BAGRAM AND SIMILAR FACILITIES ARE MILITARY PRISONS Tim Golden, 'U.S. Prison Grows Beyond Capacity Afghanistan', INTERNATIONAL HERALD TRIBUNE, January 7, 2008, npg. "As the Bush administration struggles for a way to close the military prison at Guantanamo Bay, Cuba, a similar effort to scale down a larger and more secretive American detention center in Afghanistan has been beset by political, legal and security problems, officials say. The American detention center, established at the Bagram military base as a temporary screening site after the invasion of Afghanistan in 2001, is now teeming with some 630 prisoners -- more than twice the 275 being held at Guantanamo.
DETENTION CASES ARE TOPICAL cont'd

6. ALLEGED ABUSES ARE COMMITTED BY MILITARY POLICE AT A MILITARY PRISON Matthias Gebauer et al., "The Forgotten Guantanamo: Prisoner Abuse Continues at Bagram Prison in Afghanistan," International Movement for a Just World, 9-24-06, www.just-international.org/index.php/the-forgotten-guantanamo-prisoner-abuse-continues-at-bagram-prison-in-afghanistan.html, accessed 4-15-10. US President Barack Obama has spoken out against CIA prisoner abuse and wants to close Guantanamo. But he tolerates the existence of Bagram military prison in Afghanistan, where more than 600 people are being held without charge. The facility makes Guantanamo look like a "nice hotel," in the words of one military prosecutor. The day that Raymond Azar was taken by force to Bagram was a quiet day in Kabul. There were no attacks and the sun was shining. Azar, who is originally from Lebanon, is the manager of a construction company. He was on his way to Camp Eggers, the American military base near the presidential palace, when 10 armed FBI agents suddenly surrounded him. The men, all wearing bulletproof vests, put him in handcuffs, tied him up and pushed him into an SUV. Two hours later, they unloaded Azar at the Bagram military prison 50 kilometers (31 miles) northeast of Kabul. 7. THE DETAINEES ARE HELD AT MILITARY PRISONS Mark Thompson, "Another Gitmo Grows in Afghanistan," TIME, 1-5-09, www.time.com/time/nation/article/0,8599,1869519,00.html, accessed 4-15-10. The incoming Obama Administration says it wants to shut down the U.S. military prison at Guantanamo Bay. But even if Guantanamo closes, the controversial U.S. practice of jailing suspected al-Qaeda militants and other terrorists indefinitely won't end, because such detentions continue on an even greater scale at the U.S. military base at Bagram, Afghanistan, 40 miles north of Kabul. Approximately 250 detainees are currently being held at Guantanamo; an estimated 670 are locked up under similar conditions at Bagram. The Obama transition team has declined to comment on whether U.S. detention policy for enemy combatants will change with a new Administration. Nevertheless, the U.S. military is building a new prison for what it calls "unlawful enemy combatants" at Bagram that won't be finished until Obama is well settled in the White House. "The Obama Administration is inheriting not so much a shrinking Guantanamo as an expanding Bagram," says Tina Foster, executive director of the International Justice Network, a nonprofit legal group based in New York City. (Read "Trying to Tie Obama's Hands on Gitmo.") 8. THE U.S. MILITARY IS RESPONSIBLE FOR THE ARRESTS Anand Gopal, "America's Secret Afghan Prisons," THE NATION, 1-28-10, www.thenation.com/article/americas-secret-afghan-prisons, accessed 4-15-10. In the past few years Pashtun villagers in Afghanistan's rugged heartland have begun to lose faith in the American project. Many of them can point to the precise moment of this transformation, and it usually took place in the dead of night, when most of the country was fast asleep. In its attempt to stamp out the growing Taliban insurgency and Al Qaeda, the US military has been arresting suspects and sending them to one of a number of secret detention areas on military bases, often on the slightest suspicion and without the knowledge of their families. 9. DETENTION FACILITIES ARE RUN BY MILITARY POLICE -- IRAQ PROVES Sharon Otterman, "Iraq: The Prison System," BACKGROUNDER, Council on Foreign Relations, 5-11-04, http://www.cfr.org/publication/7670/, accessed 4-15-10. According to an official memorandum issued June 8, 2003, by L. Paul Bremer III, the U.S. administrator in Iraq, "the administrator [Bremer] will remain in full control of the Iraqi prison system." In practice, the task of running the prisons was delegated to the U.S. military and, in particular, the 800th Military Police (MP) Brigade, an Army Reserve unit. Questions about inmates' treatment and interrogation have been sparked by revelations of serious misconduct by U.S. soldiers at Abu Ghraib, Iraq's largest prison. 10. THE ARMY HAS 38,000 MILITARY POLICE Sharon Otterman, "Iraq: The Prison System," BACKGROUNDER, Council on Foreign Relations, 5-11-04, http://www.cfr.org/publication/7670/, accessed 4-15-10. Of the 38,000 trained military police in the Army, only about 970 have had specific training in running prisons, The Washington Post reported. General Karpinski had never run a prison system, according to The New Yorker. The Taguba report found "there is abundant evidence in the statements of numerous witnesses that soldiers throughout the 800th MP Brigade were not proficient" in basic skills needed to operate a prison. But the report did not excuse the soldiers accused of abuses because they lacked formal prison guard training.
DETENTION CASES ARE TOPICAL cont'd

11. THE INITIAL DETENTION CENTERS ARE ON FORWARD OPERATING BASES Willy Stern, "Inside Our 'Secret" Afghan Prisons," WEEKLY STANDARD v. 15 n. 6, January 4-11, 2010, www.weeklystandard.com/Content/Public/Articles/000/000/017/387febxt.asp Despite the regular flow of stories about torture and black sites, few members of the press have been inside any of the Afghan prisons or attempted to understand the country's detainee structure. There are four separate parts to it, which in theory can take an insurgent from the battlefield through rehabilitation back into society: the Field Detention Sites; the Bagram Theater Internment Facility, which has just been replaced by the DFIP; the Temporary Screening Facility; and the Afghan-run correctional system. There are nine FDSs in Afghanistan, mostly located in the southern and eastern parts of the country, where the insurgency is strongest. They are on forward operating bases, residing in unmarked containers. Scores of soldiers walk by them every day and have no idea what's on the other side of the metal wall. They all have a small entrance area where IDs are checked. In addition to five or six cells -- divided by no more than a thick piece of plywood -- most have a medical room, an open area, a small recreation yard, and an interview room. Adjacent to the interview room is another small room with a one-way mirror for observation purposes. 12. MILITARY POLICE RUN THE DETENTION FACILITIES Willy Stern, "Inside Our 'Secret" Afghan Prisons," WEEKLY STANDARD v. 15 n. 6, January 4-11, 2010, www.weeklystandard.com/Content/Public/Articles/000/000/017/387febxt.asp Nobody displays names or ranks on their uniforms inside an FDS. Special Forces operators, whose work is often clouded in secrecy and who use fake names, even with a visiting general, staff many of the tiny facilities. But "we have absolutely nothing to hide from anybody," says Colonel John Garrity, the straight-talking military police officer in charge of the large Bagram detention facility, as well as the man responsible for investigating any charges of abuse at the FDSs. 13. INITIAL DETENTIONS AND INTERROGATIONS ALSO HAPPEN AT A MILITARY FACILITY Willy Stern, "Inside Our 'Secret" Afghan Prisons," WEEKLY STANDARD v. 15 n. 6, January 4-11, 2010, www.weeklystandard.com/Content/Public/Articles/000/000/017/387febxt.asp THE TEMPORARY SCREENING FACILITY This is the site that doesn't officially exist. Nobody on Task Force 435 will acknowledge it. No matter. It does exist, and it is at Bagram Airfield. It's the controversial facility over which Admiral Harward is apparently seeking jurisdiction. The TSF, though, is hardly as sinister as it sounds. Military operations in Afghanistan legitimately require what is essentially a way station for detainees who are being screened before they are released or transferred (either to the large Bagram detention facility or directly to the Afghan prison system). It is here that Special Operations Forces interrogate detainees, just as they do at the Field Detention Sites. 14. THE U.S. MILITARY IS RESPONSIBLE FOR THE DETENTIONS THE GUARDIAN, "Afghanistan: 'One Huge US Jail'," 3-19-05, www.commondreams.org/headlines05/0319-07.htm, accessed 4-15-10. At his office in central Gardez, Bidar showed us a wall of files. "All I do nowadays is chart complaints against the US military," he said. "Many thousands of people have been rounded up and detained by them. Those who have been freed say that they were held alongside foreign detainees who've been brought to this country to be processed. No one is charged. No one is identified. No international monitors are allowed into the US jails." He pulled out a handful of files: "People who have been arrested say they've been brutalized -- the tactics used are beyond belief." The jails are closed to outside observers, making it impossible to test the truth of the claims.

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