PRESIDENT Obama’s counterterrorism address last month was full of promising rhetoric.
Some commentators have welcomed the president’s commitment to close Guantanamo — an unfulfilled pledge since 2008 — and its importance to Pakistan.
Yet largely absent from the discussion in Pakistan on President Obama’s speech is the ongoing plight of detainees at Bagram, which has become, as President Obama described Guantanamo Bay, “a symbol around the world for an America that flouts the rule of law”.
Over 40 Pakistani citizens are being held by the United States at Bagram in indefinite detention without charge, trial or access to a lawyer. Neither President Obama nor the Pakistani government have said one word about the fate of Pakistani prisoners at Bagram, the United States’ other Guantanamo.
From Pakistan’s perspective, securing the release of its citizens in Bagram is an urgent priority. For years, the Pakistani government has shirked its responsibilities to its own citizens held by the US, some of whom the Pakistani government unlawfully captured and rendered to US forces in Afghanistan.
At a moment when President Obama seems to be insisting that the US close Guantanamo, “a facility that should never have been opened”, and appears to address terrorism in accordance with the law, it is time to bring the injustice of Bagram to an end.
My organisation, Justice Project Pakistan, represents many of these detainees and their families. Yet after years of detention without trial and despite high-level advocacy with the US and Pakistani governments, we have been unable to even talk to our clients.
Some, like Umran Khan, were tricked into coming to Afghanistan for work, only to find themselves being “sold” to the US military in exchange for a bounty.
Others, such as Hamidullah Khan, were still minors when the US military hooded and shackled them to ship them off to Bagram. All of these individuals deserve to have the most basic due process rights respected and to be released and repatriated to their families in Pakistan.
The Pakistani government is under a duty to protect its citizens, wherever they may be. This means standing up to the US and demanding that Pakistani detainees be granted access to a lawyer and be tried in a court of law.
Legally and morally, the Pakistani government cannot stand by and watch its citizens’ rights be violated, particularly by a purported ally. In the past, the Pakistani government has shown itself capable of protecting its citizens.
Until 2006, the US held over 60 Pakistani citizens at Guantanamo Bay. Some were illegally rendered by the CIA with the complicity of the Pakistani government; some were captured by the US in Afghanistan and transferred to Guantanamo Bay.
Between 2003 and 2006, Pakistan took quick and decisive action against the detention of its citizens in a US prison without charge or trial. It put together a high-ranking delegation of officials from the ministries of interior and foreign affairs which travelled to Guantanamo and negotiated a broad agreement between the US and Pakistani governments, setting out guidelines for the repatriation of Pakistani citizens.
As a result, 58 Pakistani citizens unjustly held at Guantanamo Bay returned to Pakistan between 2003 and 2004. Three more followed over the next two years.
Delegation efforts were later bolstered by actions of Pakistani representatives in Washington, who addressed the issue with State Department and Department of Defence officials.
The unjust and indefinite detention of Pakistani citizens was brought to an end by high-ranking official intervention, sustained negotiations between the US and Pakistan and the ability of both governments to come to an agreement over repatriation.
Yet, for 11 years of Bagram’s existence, the Pakistani government has never publicly objected to the detention of its citizens or lobbied the US to allow detainees access to a lawyer.
The Pakistani government has never conducted sustained negotiations with its US counterparts; instead repatriations have been ad hoc, and subject to the up-and-down political relationship between the two countries.
With the US drawdown and the handover of Afghan detainees to the Afghan government, Pakistani detainees remain in US custody at serious risk of falling into a legal limbo.
At this critical juncture, the Pakistani government has failed to invest seriously in the required political negotiations, and take the concrete steps necessary to bring an end to their unjust detention.
It took legal action by Justice Project Pakistan to pressure the Pakistani government into action. Initiated in October 2010, JPP’s litigation in the Lahore High Court seeks to hold the Pakistani government accountable for the rendition of some of its citizens to Bagram and to push the Pakistani government to end the illegal detention of its citizens by repatriating them to Pakistan.
Progress has been made. Over the course of several hearings since 2011, Justice Khalid Mehmood Khan of the Lahore High Court ordered the Pakistani government to visit Bagram, collect detainees’ personal details, confirm their nationalities, and begin earnest, committed negotiations with the US for their repatriation.
But with the impending US withdrawal from Afghanistan time is running short for the Pakistani government to act. It must secure a broad agreement with the US government, establishing clear bilateral guidelines for repatriation and ensuring that detainees’ rights are upheld — or risk losing its citizens to the legal black hole that Guantanamo Bay has become.
Pakistan’s judiciary has shown that it is more than willing to stand its ground and ensure that detainees’ rights are protected. It is time for Pakistan’s new government to do the same.
The writer is a casework lawyer at Justice Project Pakistan.