David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration's new rules would work.
He told us, "The administration's proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration's woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees' representative. This model was a complete failure for the CSRTs and should not be repeated."
He added, "It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.
He told us, "Whatever the new rules say, it's crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called 'war on terror' framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."
While it is unclear how soon the Pentagon's new guidelines will be implemented - largely because of lack of personnel - they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge's ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantanamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us, "Judge Bates' decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn't be manipulated to simply form new Guantanamos or law-free zones," Pitts said.
There are some 600-plus prisoners being held at Bagram. Some critics suspect that President Obama has been turning Bagram into "a new Guantanamo," since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.
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