Obama's Bagram Problem

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Throughout the many twists and turns of the U.S. intervention in Afghanistan over the last decade, one issue has remained a constant problem for Washington: the status of Afghan detainees in U.S. custody. The question of who has control over those held in Afghan prisons came to the forefront of the debate over the war again last month, when Afghan President Hamid Karzai demanded that the United States immediately transfer control of the U.S.-run prison at the Bagram Air Base to Afghan authorities. Karzai’s move underscored the challenge the United States faces as it tries to extricate itself from Afghanistan: the closer the 2014 exit date becomes, the bolder Karzai is likelier to be in asserting Afghanistan’s sovereignty and his own viability as a political leader in the face of a potential Taliban resurgence.
The prison at the massive U.S. military base at Bagram, in the northern province of Parwan, has long been dogged by questions about its legitimacy and its strategic utility. For years, under the George W. Bush administration, it operated as one of the central nodes in the U.S. intelligence community’s global network of secret sites; access to detainees was severely restricted for both the Afghan government and the International Committee of the Red Cross.
Upon taking office in January 2009, U.S. President Barack Obama signed an order that called for the closure of the detention facility at Guantánamo Bay, Cuba, and the CIA’s global network of black sites, the first of several signals that Obama was determined to reverse Bush’s detention policies. In August 2009, General Stanley McChrystal, then commander of NATO and U.S. forces in Afghanistan, dubbed Bagram a “strategic liability,” arguing that extrajudicial detentions at Bagram had eroded Afghan public support for the presence of foreign troops. In McChrystal’s view, Washington could no longer ignore the question of what to do with prisoners at Bagram.
Bagram also threatened to imperil the delicate alliance between the United States and other NATO member states that have soldiers in Afghanistan, some of which had long been wary of Washington’s prosecution of a seemingly limitless war on terror that fell well outside the rules of engagement called for by the Geneva Conventions. As a consequence, in the fall of 2009, the Obama administration revamped its detention policy, assigning oversight of the prison to an interagency military-civilian body known as Task Force 435.
U.S. officials signed a memorandum of agreement with their counterparts in Kabul that would transfer responsibility for the detention facility at Bagram from the Americans to the Afghans in July 2010 and create a parallel Afghan-run Justice Center in Parwan, which handles the cases of transferred detainees; since then, citing security challenges and slow progress in training Afghan prosecutors and judges, Washington has twice postponed handing over control. Last August, U.S. military officials said that the Afghan legal system was too dysfunctional to take control of the facility before 2014. Western and Afghan critics alike have complained that the Afghan penal system -- poorly funded, corrupt to the core, and prone to torture -- cannot handle the sensitive cases of high-risk detainees captured by U.S. forces on the battlefield. Given the widespread and well-documented reports of torture and abuse in Afghan prisons and the decrepit state of the Afghan court system, these are valid concerns. After all, arbitrary and indefinite detention can drive prisoners to violence and radicalization -- and that is just as true for detainees held in Afghan custody as it is for those held by the U.S. military at Bagram.
But for Karzai, responsibility over the country’s prisons is not a question of human rights and due process: he is more interested in how he can leverage control of Bagram to regain his footing in his fraught relationship with Washington. Karzai and those close to him are frustrated by both their increasing marginalization in U.S.-led talks with the Taliban and their weak bargaining position on the proposed U.S.-Afghan strategic partnership deal. They see Bagram as an important bargaining chip, one that can put the Afghan government back at the center of negotiations with the Taliban. Control over Taliban prisoners held in Bagram would provide Karzai with the power to give or withhold access to insurgent figures who might be pivotal to the negotiation process, allowing Karzai to play spoiler if he so wishes. And, if Karzai controlled Bagram, the Taliban would have an incentive to reach out more directly and publicly to the Afghan government, a step the Taliban has so far publicly shunned.
The question of who controls Bagram also provides the Afghan political opposition with a stick to beat Karzai with, as efforts to transfer U.S. control of the facility into Afghan hands inevitably falter. Although the Afghan opposition has proved weak and fragmented, it has gained considerable mileage from complaining about Karzai’s policy failures -- his consistent failure to gain any traction with Washington on control of Bagram among them. Protecting himself from the criticisms of the opposition gives Karzai yet another motive to insist on control of the prison.
As part of its new detainee policy, the Obama administration launched a process in which a review board of three military officers hears evidence to determine whether a Bagram detainee is a supporter or member of the Taliban, al Qaeda, or another insurgent group. Detainees are allowed to attend unclassified portions of their hearings. They are also assigned personal representatives, U.S. military officials who are responsible for assisting detainees with presenting their cases.