Open Society Report on “Remaking Bagram”

Speaking of reports I haven’t yet read, the Open Society Foundations has just released a report entitled “Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide Over U.S. Detention Power.” Here’s the press release. Here’s a Q&A that accompanies the report, which seems take a different view of the subject than does the New York Times article to which Matt linked yesterday. The introduction reads as follows:

September 9, 2012 should mark the end of a six-month transition process, in which thousands of detainees are transferred from the U.S. military to the Afghan government and the Afghan government takes control of the Detention Facility in Parwan (DFIP). Many Afghans saw this transfer as a restoration of Afghan sovereignty over detentions. However, Open Society Foundations research suggests that the detention agreement struck between the Afghan and U.S. governments in March 2012 masks a difference in understanding. While the Afghan government maintains that under this agreement U.S. detentions will end as of September 9, 2012, the United States wants to retain control over part of the detention facility, the DFIP, so that it can continue to capture, hold, and perhaps detain individuals there for the foreseeable future.

Compounding the seriousness of this political divergence is what may become the real legacy of U.S. detention in Afghanistan: the creation of an Afghan internment regime. The United States has been using internment in Afghanistan for many years, where detainees are “preventatively detained” for “imperative security reasons,” rather than accused of a crime and tried in a court. In order to facilitate the transfer of the detainees interned by the U.S. military, the Afghan government created its own internment regime, closely resembling the U.S. system. Though the Afghan government has chosen to transfer many of the detainees to a criminal court, more than 50 are now being held by the Afghan government without charge or trial through this new internment power. Senior Afghan officials have told the Open Society Foundations that they believe the new system is unconstitutional.

The introduction of internment to Afghanistan, and the process by which around 3,100 detainees are being transferred, has happened with very little public or political scrutiny in Afghanistan. The Afghan internment regime was not created through an act of Parliament, but by unilateral executive action. The document establishing the procedures to be used for internment, an unpublished “inter-ministerial agreement” called “The Procedure for Transition and Management of Bagram Detention Facility and Pul-e-Charkhi Detention Facility from the United States of America to the Islamic Republic of Afghanistan” (The transition procedure) is vaguely worded, resulting in troubling uncertainty over who can be detained, on what grounds, and for how long. The scope of internment under the transition procedure is also unclear, and leaves open the possibility that internment will not be limited to detainees transferred from the DFIP. Instead, it may also be used to intern individuals captured in future U.S. and Afghan operations, and become a permanent rather than a temporary, limited detention power assumed by the Afghan government.

Though numerous Afghan officials have told Open Society Foundations researchers that they believe Afghan internment will come to an end in September 2012, when they assume the detention transition will be complete, U.S. statements and actions suggest otherwise. U.S. forces have continued to capture individuals in military operations and detain them on the “U.S. side” or part of the DFIP since the transition process began in March 2012, adding around 600 detainees to the facility. So even though they have almost completed the transfer of the 3100 that were being held in March, these additional captures and detentions makes it all but impossible for them to meet the Afghan government expectation of a full handover of the facility.

Indeed, Open Society Foundations has learned that disagreements over these issues led to a temporary suspension of U.S. transfers, which appears to have been resolved only days before the scheduled handover. Open Society Foundations understands that this suspension that relates to concerns among Afghan officials regarding the legality of the internment regime—a regime that appears to have been critical to the U.S. agreement to handover the DFIP likely due to the lack of admissible evidence against many high value detainees.

The United States also appears to want continued detention powers in Afghanistan beyond September 2012, something which all Afghan officials interviewed for this report have categorically rejected. The National Security Advisor, Dr Rangin Dadfar Spanta, told the Open Society Foundations, “We cannot allow allies and friendly countries to have detention centers here. This is illegal.” So despite an apparent agreement in March 2012 to transition the DFIP to Afghan control, disagreement between the United States and Afghanistan appears to remain, centered on sovereignty, and control over detainees captured in ongoing U.S. military operations.

The process for transferring U.S-held detainees to Afghan custody has been hampered by a lack of proper due process protections, insufficient evidence, and lack of clear, transparent standards for determining whether detainees will be released, prosecuted, or interned. These problems have been exacerbated by the short, six-month timeframe of the transfer process. The sudden, large influx of new detainees for prosecution at the national security criminal court---the Justice Center in Parwan (JCIP)---has made worse the problems of case back log and lack of capacity, increasing the risk of prolonged detention and due process violations.

Third country national, or non-Afghan detainees, represent yet another major, unresolved issue. These detainees remain in U.S. custody at the DFIP, their fate uncertain. Given the lack of progress thus far in repatriating, releasing, or resettling these detainees, many are at risk of falling into the kind of indefinite detention limbo reminiscent of Guantanamo Bay, making it likely that the United States will continue to control at least a portion of a detention facility after the September 9th handover.

Meanwhile, the transfer of approximately 3,100 U.S.-held detainees to the Afghan authorities, something the Afghan government has long sought, has come at a high cost: the establishment of a new, Afghan regime of internment. While many in the Afghan government have said that it was introduced as a temporary measure in order to process those individuals transferred by the U.S. who continued to pose a threat, others have said that Afghan internment is here to stay. Though internment may be legal under international laws of war, such regimes are notoriously open to abuse, particularly in countries already wracked with impunity and weak rule of law. It is therefore particularly concerning that internment has been adopted in Afghanistan, and in a manner that lacks transparency, and that many feel is unconstitutional.

For those (presumably very few) Lawfare readers more comfortable in Pashto or Dari than in the English, the report and the press materials are helpfully available in both of those languages too.