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The United States has quietly expanded the number of "enemy combatants" being held in judicial limbo at its Bagram military base in Afghanistan, a facility which has now grown to more than twice the size of the controversial and much more widely discussed military prison at Guantanamo Bay in Cuba. Bagram has received just a fraction of the world attention paid to Guantanamo, but the two facilities have prompted very similar complaints about prisoners held incommunicado for weeks or months, the lack of recourse to any system of legal redress, and persistent reports of prisoner mistreatment that many human rights campaigners have characterised as torture.

Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush's most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court. Back in the day, this was called a "Bush's legal black hole." In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo. Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention. Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram -- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned. Amazingly, the Bush DOJ -- in a lawsuit brought by Bagram detainees seeking habeas review of their detention -- contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind. In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged. One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers "told a federal judge 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." . . .

Numerous media outlets -- The New York Times, The Washington Post, The Guardian, The Telegraph, and NPR, among others - last night published classified files on more than 700 past and present Guantanamo detainees. The leak was originally provided to WikiLeaks, which then gave them to the Post, NPR and others; the NYT and The Guardian claim to have received them from "another source" (WikiLeaks suggested the "other source" was Daniel Domscheit-Berg, a former WikiLeaks associate who WikiLeaks claims took, without authorization, many WikiLeaks files when he left). The documents reveal vast new information about these detainees and, in particular, the shoddy and unreliable nature of the "evidence" used (both before and now) to justify their due-process-free detentions. There are several points worth noting about all this:

As always, the most harmful aspect of the Obama legacy is that he has converted what were once controversial right-wing Bush policies into unchallenged bipartisan consensus, to endure indefinitely and without any opposition from either party.

Obama hasn't closed Guantanamo and people are still being tortured at Bagram[2], the U.S. is bombing at least six Muslim countries that we know of (Iraq, Afghanistan, Libya, Somalia, Yemen, Pakistan)[3], and the healthcare bill fiasco in which he had secretly traded away the public option from the beginning[4] very clearly show that he definitely hasn't changed the way Washington works. If anything he's made every conceivable pernicious undemocratic influence stronger.

A Syrian man released from the prison at Guantanamo Bay last year sued the U.S. military Wednesday, saying that he was the victim of a "Kafkaesque nightmare" in which he was tortured by al-Qaeda after being accused of being U.S. spy, liberated, then tortured by the Americans, who held him for seven more years by mistake.

Today, by ordering a military trial at Guantanamo for 9/11 plotter Khalid Sheikh Mohammed and his co-defendants, Attorney General Eric Holder finally put the Obama administration's stamp on the proposition that some criminals are "too dangerous to have fair trials."