This is not good in itself, but the Obama DoJ's decision here raises questions about what they consider to be detainee categories. Bagram detainees are considered unlawful combatants. Does the Obama DoJ consider those at Bagram, held indefinitely, with no right to challenge their detention in the US courts, unlawful combatants? Are those held at Bagram in a world where Appendix M, applicable only to unlawful combatants, can be applied? To quote the CCR web article Valtin posts about here:
"Appendix M of the Army Field Manual - a new section introduced in 2006,
applicable only to
'unlawful combatants,' the category applied to detainees in Guantanamo, at
secret CIA prisons, and elsewhere - allows the use of techniques such as
prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear
and humiliation of prisoners. These techniques, especially when used in
combination as permitted by the AFM, constitute cruel, inhuman and degrading
treatment, and in some cases, torture. These techniques have caused documented,
long-lasting psychological and physical harm and were condemned by a bipartisan
congressional report released last month, as well as by the Bush-appointed head
of the military commissions at Guantanamo."
If Bagram can exist as is, can Appendix M? It is true, as Andy Worthington writes, that Obama's executive order Ensuring Lawful Interrogations:
"specifically revokes President Bush's Executive Order 13440
of July 20, 2007, which 'reaffirm[ed]" his "determination,' on February 7, 2002,
that 'members of al-Qaeda, the Taliban, and associated forces are unlawful enemy
combatants who are not entitled to the protections that the Third Geneva
Convention provides to prisoners of war,' sought to grant himself the right to
'interpret the meaning and application of the Geneva Conventions" as he saw fit,
and also sought to exclude the CIA from any oversight whatsoever.'"
Yet Obama confirmed the Bush position on Bagram. And that position is that those at Bagram were "unlawful combatants."
Are those at Bagram denied access to US courts because they are another category, aside from unlawful combatants? Are they denied the right to challenge their detention because they are unlawful combatants?
People at Bagram, picked up outside Afghanistan, are under Obama at least temporarily denied judicial review of their detention. And that makes them what?
This decision by the Obama DoJ raises the real possibility that unlawful combatant exists as a category, and that Appendix M can be lawfully used. We need to know what is really going on. Thanks to the careful folks like Valtin and those at CCR for raising the troubling issues of Appendix M. Appendix M, unfortunately, may not be dead.
Update: Here is a definition of "unlawful enemy combatant" from Human Rights First:
"'Unlawful Enemy Combatant'
The United States government defines 'unlawful enemy combatant' as 'a
person who has engaged in hostilities or who has purposefully and materially
supported hostilities against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who is part of the Taliban, al
Qaeda, or associated forces).'
The Bush Administration asserts that 'unlawful enemy combatants' can be held pursuant to the President's powers as commander-in-chief and under the laws of war until the end of hostilities. The administration argues that detaining enemy combatants prevents them from returning to the battlefield, thereby deterring further armed attacks, and allows the United States to gather intelligence through interrogation to prevent future attacks."
More info on unlawful combatants is here and here.
We know that the Bush administration position is that (from Daphne Eviatar) "the prisoners at Bagram are 'enemy combatants' seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end – whenever that may be." We know also that none of the prisoners at Bagram are being held (from Jonathan Hafetz) as "prisoners of war." So unless Obama changes openly the status of those in Bagram, I would assume they are all being held as unlawful enemy combatants. And I would assume they are being treated as such - which means the AFM Appendix M is in play (it certainly can be used). As David Mizner writes here, "In upholding Bush's position, Bush [I believe he means to write "Obama" here] is reaffirming that these prisoners are enemy (or unlawful) combatants."
It seems, therefore, that Bagram is Appendix M territory. You can argue as Decline and Fall does here that the problem isn't the AFM. That's another perspective. I find the conditions at Bagram right now quite worrying.