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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.
When I visited Bagram last November, Colonel Peter Masciola, head of the legal operations directorate there, described this to me as a “meaningful opportunity to counter claims in an administrative procedure.” The hearings, however, fall far short of international legal standards. Detainees are still barred from reviewing classified evidence or from listening to classified testimony in their cases, which largely consists of hearsay evidence of the detainee’s alleged terrorist connections. Personal representatives assigned to detainees are allowed to see the classified evidence but not share it, and since these representatives are not lawyers, there is no way for detainees to challenge their inability to review classified evidence. This is a clear violation of international law on fair trial standards. But by providing a hearing that mimics a regular court procedure, the White House has been able to airbrush these concerns out of the picture.
In the classification-obsessed culture of the U.S. military, the simplest details about a detainee’s capture are often classified. Since the U.S. military also limits the information it shares with the Afghan government, Afghan judges and prosecutors are also barred from reviewing all the evidence in cases that are transferred to them under the Bagram transition agreement.
Task Force 435 has generally solved this problem by either delaying the transfer of detainee cases or, sometimes, by handing over virtually empty case files to Afghan authorities. As a result, Afghan judges have thrown out dozens of cases because of a lack of evidence. This was one of the chief findings of a presidentially appointed Afghan constitutional commission that recently visited the Afghan-run side of the facility. The Afghan government commission acknowledged that some detainees transferred from U.S. to Afghan control had been abused by Afghan authorities, but ultimately concluded that deficiencies in the Afghan system represented the lesser of two evils when stacked against the arbitrary nature of the U.S. detention regime. Although the commission report was flimsy and (rather ironically) focused on the many flaws in the Afghan government’s handling of detainees transferred from U.S. custody, it also concluded that Afghan prosecutors should toss out cases against detainees who are transferred without case files and release them immediately.
U.S. officials working in Task Force 435 have acknowledged the problem and say they have tried to remedy the situation by issuing directives aimed at clarifying the classification process, but claim they cannot do much more than that. Meanwhile, there is a serious backlog of cases at Bagram, resulting in a population spike that saw the number of detainees held at the facility increase from around 1,700 last March to around 3,000 last November.
The backlog raises questions about when the United States will actually be able to transfer control of the prison.
If Obama and Karzai are serious about the transition away from a U.S.-led war effort to an Afghan-led settlement of the conflict, they must commit to finding a solution to the detention problem. The White House must start preparing a status-of-forces of agreement with Kabul before 2014 that spells out the details of the transfer of the Bagram detention facility and more explicitly defines the U.S. basing rights described under the 2002 military technical agreement between Kabul and Washington. Washington also needs to address the legal and security problems posed by the transfer of sensitive information from U.S. and NATO forces to the Afghan government. Task Force 435 and the Pentagon need to reformulate classification policy so that case information can be transferred to those Afghan lawyers and judges working on the cases. At the same time, the Afghan government and the international community must work together to enhance the capacity of the Afghan legal system to compartmentalize and protect sensitive information, without resorting to draconian secrecy measures that restrict access to evidence for detainees and their lawyers.
For his part, Karzai is standing on less than firm ground when he complains about arbitrary detention and prisoner mistreatment. The Afghan government needs to get its judicial house in order by guaranteeing that courts employ fair trial standards, ensuring that detainees and their lawyers have access to all the evidence, and preventing detainee abuse and arbitrary detention. Until such steps are taken, it will be difficult for either the Americans or the Afghans to talk convincingly about supporting the rule of law, since both parties are flouting international law.