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Turning Over the DFIP Part I: Are the Afghans Embracing Non-Criminal Detention?

Robert Chesney
Friday, March 9, 2012, 2:22 PM
Does the announcement of a deal between Afghanistan and the United States regarding transfer of the DFIP (Detention Facility in Parwan) to Afghan control (see Ben's post below) herald a new Afghan position on the acceptability of non-criminal detention? By way of background: In an ideal world, the US no doubt would have gotten out of the business of directly administering military detention in Afghanistan long ago, in favor of having the Afghans do it themselves.  But in reality, there have long been plenty of reasons not

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Does the announcement of a deal between Afghanistan and the United States regarding transfer of the DFIP (Detention Facility in Parwan) to Afghan control (see Ben's post below) herald a new Afghan position on the acceptability of non-criminal detention? By way of background: In an ideal world, the US no doubt would have gotten out of the business of directly administering military detention in Afghanistan long ago, in favor of having the Afghans do it themselves.  But in reality, there have long been plenty of reasons not to do that, including doubt as to the capacity of the Afghans to run such a facility effectively (from both a security and human rights perspective), and concern about the pace of progress regarding the effort to overcome such deficits through training.  In addition, there is the matter of the legal authority to detain that the Afghans are willing to assert.  My experience is that it is strangely difficult to get a square answer on this question, but my loose sense nonetheless has been that the Afghan government does not currently assert--or at least did not previously assert--the authority to detain under color of the law of armed conflict, but rather took the view that captured persons must be routed into the (emergent) Afghan criminal justice system.  Certainly the US government has been beaten up a bit by human rights groups, from time to time, on the ground that even the local government does not assert detention authority of the kind employed over the past decade by the United States.  Which raises the question: does the detention transfer agreement represent a sea change on this issue? It seems so.  The coverage of this development in the Times opens by noting that "the United States agreed on Friday to greatly accelerate its handover of detainees to Afghan government control on but will retain a veto over which ones can be released, American officials said."  That certainly sounds like a system in which non-criminal detention will be supported. I invite readers to weigh in if they have expertise on this matter.  Is it the case that the Afghans have changed policy, however quietly they are going about doing so?  Or is it instead the case that the Afghans all along did quietly accept that non-criminal detention was lawful in at least some circumstances?  I would not actually be surprised to learn that the latter is true; I would be even less surprised to learn that Afghan officials largely have advanced the prosecution-only line, while in actual practice Afghan forces have in fact been acting otherwise for years.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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