The ‘Other Guantanamo’ 6: Afghans still struggling for sovereignty at Bagram
It is exactly four months since the US military officially handed over its detention facility on Bagram Airbase to the Afghan Ministry of Defence. Whatever agreement was made between the two governments, it has never been made public. However, from speaking to detainees who have been released since the handover, AAN has been able to build up a picture of conditions there. Many more detainees are being freed than under the US system, including some whom the US had held without trial for years. However, former detainees say that even after being handed over to the Afghan authorities, the US military retains access to them for interrogation (the authorities deny this). They also say that, before arriving at the ANDF, some detainees are sent for interrogation to another, US-controlled site on Bagram Airbase known as Tor Jail (the Black Prison) where sleep deprivation is allegedly practiced. Senior AAN analyst, Kate Clark, reports.
The 25 March 2013 handover was the second attempt at transferring the detention facility at Bagram – now renamed the Afghan National Detention Facility (ANDF). The United States and Afghanistan first struck a deal on 8 March 2012 to great fanfare, publishing the agreement and discussing it with the media.(1) Within months, it had, acrimoniously, fallen apart.
This time, both sides have been more circumspect, not releasing the 2013 agreement, despite both sides telling AAN it was not classified.(2) Indeed, not even leaked copies have emerged, although one official who spoke to AAN said he had seen a late draft of the agreement. Trying to work out how the new regime at Bagram(3) is operating has been difficult. AAN has sought to build up a picture of current conditions by interviewing detainees released since the March handover, together with lawyers and officials, almost all speaking off the record, as well as the head of the ANDF, General Farouk Barakzai.
The secrecy is not due just to the bitter way the 2012 agreement broke down. This is an incredibly sensitive subject. For President Karzai, foreigners detaining Afghans on Afghan soil is an anathema; he sees it as an affront to national sovereignty and illegal under Afghan law. For the US, the only nation to have set up its own detention facilities in Afghanistan,(4) the main issue has always been the war and its worry that detained Taleban, if handed over to the Afghan state, could speedily find their way out of the Afghan justice system and back onto the battlefield.
In March 2012, the Afghan government had, at the US’ insistence, agreed to continue to use administrative detention as one way of dealing with detainees. Administrative detention is the holding of enemy combatants without trial for the duration of hostilities and is allowed under the Geneva Conventions. This, along with what looked like a de facto US veto on releases (always denied by the Afghan government)(5), was intended to make sure those detainees considered by the US to be an ‘enduring threat’ would not be let out.
However, in May 2013, even as the Afghan state began to practice administrative detention, the presidential spokesman denied it was doing so, saying it would be a breach of Afghan domestic law. The increasing Afghan reluctance to hold its own citizens without trial became ever clearer and eventually, the US lost faith in the Afghan willingness to keep locked up those detainees it considered most dangerous. By September 2012, it had stopped transferring detainees to the fury of President Karzai. It took a meeting between the two countries’ presidents in January 2013 to pave the way for an eventual full handover in March – which included even those considered by the US to be most dangerous, ‘enduring threat’.
As to how the new system at Bagram is working, through interviewing as many people involved in the ANDF as possible, AAN has been able to shed some light and raise some serious questions about human rights and Afghan sovereignty.
Pre-transfer interrogation – the US uses a classified site
The man in charge of the ANDF, General Barakzai, told AAN, that under the 25 March agreement the international military must transfer anyone they detain within 96 hours (or release them if they determine they are not enemy combatants). However, it seems the US is still sending detainees for interrogation to a site on Bagram Airbase named by detainees as the Black Prison – or, in Pashto, Tor Jail.(6) Detainees named it ‘black’ either for the dark coloured cement it is built from or because they are dependent on electric lights which, if turned off leave them in utter darkness. Tor Jail was described by one person who visited it as consisting of “huge hangars and within them small cubes, all with… surveillance cameras… rooms within rooms. There is no sunlight. Turning off the lights means there is no light. But mainly the lights are always on – 24/7.” More recent inmates concur with the visitor that the lights are kept permanently switched on. This interferes with the body’s natural circadian rhythms.
Direct interviews with those detained after 25 March 2013 has not been possible; because of the months’ long backlog of detainees waiting for their cases to be reviewed or to go through the courts, it is still too early for them to have been released. Even so, recently released detainees who have shared communal cells with the recently detained report that some of them had also been sent to Tor Jail:
In my first cell, there was no-one who had been in Tor Jail, but in the second, there were two. One was from Sangin [district of Helmand]. He had come directly to Bagram and spent 17 days in Tor Jail. He said it was like being in a cupboard – two metres long and less in width. He said they gave him just enough food to prevent him from dying – crisps, biscuits, nuts and only one bottle of water in 24 hours, so he wouldn’t go to the toilet frequently. Another man, also from Helmand, from Gereshk [district], said he spent seven days there.
The person with the most recent direct experience of Tor Jail whom AAN has managed to interview was a young man or about 22 to 23 year years old, clean-shaven and from the east. He was picked up from his home by US forces one night in December 2012 (he alleged that for hours, everyone was kept outside the house, with all the men in the family immersed in cold water in a canal). He said he was held on a US base for three days, before transfer to Tor Jail for 20 days and then to ANDF (“about five minutes drive away”) where he was held for six months (ie he was not found guilty of any crime). He said:
“The cell [in Tor Jail] was inside a container-like ‘structure’ and was very small.” Demonstrating a space smaller than about two square metres, he showed how he had never been able to stretch his legs out and instead had only been able to lie with his knees drawn towards his chest.
They didn’t give us water for ablutions and this was a big problem for us; we could not be clean [before prayers] and you need to pray when you are in jail, more than when you are out. They switched the air conditioning on and would leave it on for hours and hours; outside it was cold and I was shivering, freezing; my legs were shaking and I couldn’t keep my teeth still… I could hear crying and was very worried every time they came [to take me for interrogation].There was a camera on my face and I think they were watching it all the time because whenever I closed my eyes, they would come very fast and knock very hard and shout at me… During that time, I never talked to an Afghan [about my case or in an interrogation.]
The man said he was interrogated “intensively”, every three to four hours during those 20 days, although it was difficult working out the passing of days and hours because of the constant lights and because he was constantly prevented from sleeping.
Tor Jail has been referred to in human rights reporting, including by the Afghanistan Independent Human Rights Commission (AIHRC) and Open Society Foundations (OSF) in 2012, the OSF in 2010 and Human Rights First and in media investigations. In 2011, AP’s veteran intelligence correspondent, Kimberly Dozier reported that it was run by the Joint Special Operations Command (JSOC), the US military’s elite counterterrorism unit which operates under the US counter-terrorism mission Operation Enduring Freedom, rather than the ISAF mandate and carries out the bulk of targeted killing and capture operations in Afghanistan: “Working together with CIA and other intelligence officers at the site, JSOC questions high-value targets.”
The AIHRC/OSF reported on Tor Jail in 2012 as follows:
Detainees’ descriptions of the conditions in which they were held, specifically small, windowless single person cells, excessive light, insufficient water for ablutions before prayer, and noises that interfered with sleep, are consistent with conditions of confinement at the JSOC-run temporary detention or screening facility at or near Bagram Air Field documented in previous Open Society  reporting.
From AAN’s admittedly much smaller sample of interviews, it looks as if conditions have not changed at all since 2012. Detainees report not having enough water for drinking, let alone for ablutions, food being inadequate and dry (it sounds like they possibly also get the soldiers’ rations), being kept cold and, most seriously, being severely deprived of sleep.
When asked about Tor Jail and allegations by other detainees that they had been held in US military bases, such as Camp Salerno in Khost, for as long as three weeks for interrogation prior to transfer, General Barakzai pointed to the 96 hour handover rule, before sidestepping the question, “You should ask the US about this. We don’t know anything about [Tor Jail]. I have never been there. There was never any need.”
A US Defence Department spokesman, Lieutenant Colonel Todd Breasseale, answering an AAN question about Tor Jail as a ‘black site’, said:
… I can say unequivocally that the US military has only one facility for internment, what we call the DFIP Detention Facility In Parwan [he is referring here to those blocks at the detention facility still under US control where it is still detaining foreign nationals]. There simply is no, as you put it, ‘black site.’ Rumours and myth-making to the contrary simply do not withstand intellectual rigor. To be sure, we have a number of locations which are classified for obvious security reasons, for transiting and screening (which, as you know, is recognized and specifically mentioned by [the] Geneva [Conventions]), but they are not undisclosed or ‘secret.’ The existence and locations of them have been disclosed to the [International Committee of the Red Cross] – who enjoy access to each of them, throughout Afghanistan. The Afghan Government and the United States Congress also know about these facilities that are used for transiting and screening.
He did not respond to follow up questions about the allegation that the US military/CIA is using sleep deprivation at Tor Jail.
In the view of the US military spokesman, Tor Jail is classified, rather than secret and, because it is known to the ICRC and Afghan government, is not a ‘black site’; (compared, presumably, with the secret sites used by the CIA in its strategy of rendition and torture during the first Bush government). Nevertheless, the continuing and secretive use of the site raises concerns. Use of sleep deprivation, if severe and prolonged enough, can amount to torture (see discussion here and here). Moreover, just how sovereign can the Afghan government say its control of night raids and detainees is, if Afghan citizens are locked up by the US military beyond the agreed 96 hour rule?
Very few outsiders get to visit Tor Jail. From among the human rights organisations which can monitor and publically comment, ie UNAMA or the AIHRC, rather than the ICRC, there has only ever been, as AAN understands it, one visit: a presidential delegation which included the AIHRC at the end of 2011. The AIHRC (in the joint report with the OSF quoted earlier) raised concerns about conditions there, including sleep deprivation, as well as detainees being transferred on to NDS facilities where they said they were tortured.
ANDF after the transfer – more Afghan guards, but the Americans remain
The change in ANDF on 25 March 2013 was noticeable, said detainees: after the full handover, there were many more Afghan guards. However, the American guards did not disappear. According to General Barakzai, a few US soldiers and their translators have remained to advise and train. From his figures, the ratio is roughly one to two American guards to a minimum of ten Afghans. Barakzai stressed that the Afghans were in charge. The perception among detainees, though, is that the US soldiers are “supervising” the Afghans. As one man put it, the Afghans are mere “watchmen”.
Several ex-detainees mentioned that Americans have still been taking prisoners off for interrogation since the 25 March full handover. “Personally,” said one man who was originally arrested in 2008 and released in late April 2013, “I was interrogated by Americans right up to the last day.” The young man from the east who was detained in December 2012 said that, after his initial interrogation in Tor Jail (every three to four hours) and then transfer to the ANDF, he would still be taken off by US guards for interrogation – two or three times a week for the first three weeks, then once or twice a week and then occasionally. Towards the end of his six months, he said interrogations would be short, but tough, shouting the same questions they had been asking all along. He said he was only ever interrogated by Americans, although Afghans were present at the ANDF.(7)
One interviewee who saw a late draft of the 2013 US-Afghan agreement said it stipulated that, “in consultation with the Afghans authorities, the US military could still interrogate… and when releasing Afghan detainees, they needed to consult with the Americans.” The interviewee noted that this was not the final version, but a late draft which could subsequently have been changed.
For his part, Barakzai was adamant that the US has no access to detainees in the ANDF. “I do not believe it’s possible,” he said. “This is a lie.” The US Department of Defence spokesman did not respond to a question about this.
Trials, releases and no longer administrative detention – probably
All interviewees concurred that administrative detention is no longer in general use at Bagram except by the US for the third country nationals it still holds. Rather, the Afghan state has shown a strong tendency to see detainees put through the courts. However, AAN is slightly cautious to say administrative detention could never be used as we have not seen the 2013 agreement. It certainly featured in late negotiations, although by all accounts, did not make the final draft. However, the presidential spokesman, Aimal Faizi, told AAN in May 2013 that senior legal authorities had been looking at Afghan domestic law to see if and for how long detainees could legally be held before they would have to be convicted or released: the answer, he said, was a maximum of about ten months. He also said they had been looking at the anti-terrorism law which allows for a “special mechanism” to see if it might provide more flexibility.(8) It would seem that monitoring is needed – although it is difficult to see how – of the few dozen individuals whom the US considers an ‘enduring threat’ to make sure they also pass into the court system or are released for lack of evidence.
The new, post-25 March system involves first a triage of detainees by a panel, called the Afghan Review Board, which recommends detainees are sent for trial under Afghan law in the court at the Justice Centre in Parwan (JCIP), which is also located at Bagram Airbase, or are released if there is not sufficient evidence.
Losing administrative detention has produced major changes: far more Afghans are now being freed. “When the US was in charge, maybe they released 100 people,” said General Barakzai. “In the last year and three months [since the initial handover in March 2012] we have released 2353 people, the majority by the court, with only about 600 to 700 by the Board.” Currently, there are one or two batches of releases each week. Judges frequently give detainees sentences which are less than the time they have already spent in detention, and so they are released. This includes long-term detainees – men whom the US military had detained five or more years ago. Barakzai said the court was working hard to get the detainees put on trial and through the system.
According to General Barakzai, the new system is designed to run as follows:
• After 96 hours, the US should either release a detainee (if they decide he is not an enemy combatant) or transfer him with his case dossier to the Afghan authorities at the ANDF.
• Within 24 hours, his details should be registered and given to the NDS which then has two to three weeks to gather any information it has on the individual.
• The Afghan Review Board, which is made up of two prosecutors from the Attorney General’s Office and one official from the Ministry of Justice, considers the detainee’s case in the light of information from the NDS and evidence handed over by the US military.
• If the Review Board decides there is sufficient evidence, the detainee is sent to the court: the Justice Centre in Parwan (JCIP). If not, he is released. The list of decisions is sent to the Ministry of Defence, the Chief of Army Staff and the US military.
I asked Gen Barakzai whether the US had a veto on releases. He said the US occasionally supplies more evidence against a detainee whom the Board has decided to release, something which the NDS could also do. “According to the agreement, the Board is independent and no-one is allowed to interfere with its decisions,” he said, although, “healthy advice will be considered.”
General Barakzai said the Review Board was assessing 40 to 70 cases a week, but said a backload of hundreds of cases meant fresh detainees were having to join at the back of a long queue to get their cases heard. (Another source said the Review Board had been set up by presidential decree at the end of May 2013, ie two months after the handover, to speed up the assessment of detainees.) The general would not say how long detainees have to wait for a review of their cases, but said the backlog should be whittled down in the coming few months.
From the detainee point of view, it can all feel very random: how long a decision takes to come through and who is really making it, how long it takes for a release order to be acted on or for the court to see him. There is still a perception that, behind the scenes, the Americans continue to control everything, but this could just be a function of the long delays and uncertainty. As evidence that the Americans are “really in charge”, two detainees said they had been told they were to be released, not by Afghans, but by US soldiers. One said:
He [the American] made me sign a paper and told me what would happen. There was no Afghan present… I did not believe it, I thought it was a trick to break me, but I was brought to Kabul and then to a room without being told anything.
He went on to describe his family having to give guarantees to secure his release, a practice which defence lawyers told AAN detainees was common for those released without charge of trial by the NDS. The detainee said
With 25 to 30 people, I was ‘reconciled’ – by the High Peace Council or similar looking body. There were people from all sorts of provinces. We were all made to swear that we wouldn’t join the insurgency or fight the Afghan government or the constitution. Most importantly, we were forced to give a guarantee. I do not have anything, but the property deeds of my uncle’s shop were handed over. I had not organised anything. In the end, my family accepted they would provide guarantee. [The Afghan authorities] explained that they were not worried about me being an insurgent but that I am a Pashtun and tribal. To avoid retribution [for the false arrest], they take this guarantee. Even if we are not Taleban, they fear normal Pashtuns. So the release was done in one day. I signed all the papers and left.
Those sent for trial are transferred to the Justice Centre in Parwan where there is a primary and appeals court. One source said about 400 people work there – defence lawyers, prosecutors, judges, NDS investigators and guards – all Afghan and working to Afghan law. American advisors are also involved.
Defendants are generally tried under the law of Crimes against Internal and External Security, either for “destructive activities” which carries a punishment of minimum ten years in prison, or the lesser crime of membership of “a secret, underground group” planning crimes against internal or external security. Lawyers working at the JCIP say judges tend to give relatively low sentences, often about a third of what the same suspect would have been given in an NDS court. They say this is because they are uncomfortable with trying those who have been detained by the foreign military, who under Afghan law, have no powers of arrest – implying the judges generally believe the trials at JSIP break Afghan procedural law. Moreover, AAN was told the judges are disinclined to trust ‘foreign evidence’ – such as explosive traces, DNA etc, still preferring the usual basis for a conviction in Afghanistan, a confession.
Defence lawyers, who are supplied by the ministry of justice and, mainly, by a number of NGOs, are generally reckoned to be independent. They are, on the whole, positive about the JCIP, although one should bear in mind the terrible record of other Afghan courts, especially those dealing with security detainees (usually military judges sitting in courts inside NDS facilities). In 2012, the AIHRC and OSF described some of the abuses and violations in this system: “NDS officials regularly violate the due process rights of conflict-related detainees, subjecting individuals to prolonged, incommunicado detention without charge and without access to [defence] counsel.” In other courts, judges are regularly bribed or leaned on by the powerful and rarely question or throw out confessions when defendants allege they had been tortured.
At JCIP, according to all interviewees, bribing of judges does not take place. Defence lawyers are present in court after having had private time speaking to their clients. There is a 30 per cent acquittal rate, said one lawyer, “so this is certainly not a kangaroo [ie a sham] court”. There are still problems, however. Defence lawyers get allocated rather than selected by the client and only see the evidence at the trial, giving them no time to prepare a defence. One said:
JCIP is not bad by Afghan standards. The main problem is justice delayed – the case load is so high. That means things can also get smudged together. Exactly the same evidence can be used against different, unrelated defendants.
Defence lawyers also said the procedures in JCIP were, in the words of one, “obscure”: how long before those acquitted would be released and do they actually get released? Lawyers are unable to follow up on clients, making it difficult to find out what happens eventually. One said: “The process feels increasingly random.”
About 2500 Afghans are currently held in the ANDF, with a further 500 held in another Ministry of Defence facility at Pul-e Charkhi which mainly houses those who have come through the ANDF and JCIP and are awaiting appeals. The information provided by former detainees raises difficult questions about the new system there. The decision not to publish the US-Afghan agreement on the ANDF has raised suspicions that the parties have something to hide, specifically on whether the US has access to detainees for interrogation and whether it has an effective veto on releases. Moreover, although ICRC visits the ANDF, of the two major human rights bodies which can also publically advocate if they are concerned about conditions, only UNAMA has been able to visit (once in mid-July 2013). The AIHRC, which used to visit at least every three months, said it was still waiting for permission to visit, four months after the handover.
It seems the US army is still taking the lead in detaining Afghans in targeted operations – which would appear to go against the 2012 Night Raids Memorandum of Understanding. It stipulates that all special operations intended to lead to detentions should be conducted by Afghans, with the US military only in a supporting role and only if requested.(9) The fact that the US military is still handing over detainees and dossiers and is still conducting its own lengthy interrogations suggests they continue to be in charge of these detention operations. There is clear evidence, also, that the US army and/or CIA is ignoring the 96 hour rule and still interrogating detainees on military bases or in the Tor Jail. Finally, the use of sleep deprivation over may days, as described to AAN as still taking place in Tor Jail, may amount to mistreatment or torture.
Generally, conditions at the ANDF are far better than in other Afghan detention facilities (as JCIP is better than the regular courts). There are no reports of the sort of torture which plagues the NDS, for example. But is it sovereign? The presence of US guards may be explained – as per the 2012 agreement – as intended to ensure prisoners are treated according to humane standards.(10) The Afghan authorities insist they are only there to train and mentor. Detainees believe they are still in charge. From their point of view, at least, the Afghan government has yet to achieve any meaningful sovereignty over its detained citizens.
(1) AAN has published five dispatches in the last 16 months on the handover of the detention facility at Bagram, as well as a sixth on the handing over of night raids (which frequently result in detention):
The Bagram Memorandum: Handing over the Other Guantanamo, 21 March 2012
The ‘Other Guantanamo’ 3: Bagram and the Struggle for Sovereignty, 10 September 2012
Handing over Night Raids, 9 April 2012
(2) AAN put in requests to receive or see a copy of the MoU to both the Afghan government and the US military. A US Department of Defence spokesman told AAN they would not be releasing it:
While it is not a classified document it is a diplomatic agreement, and we never discuss the specifics of diplomatic agreements. Release of bilateral, diplomatic agreements requires advance consent from both of the parties who are signatories to the agreement.
(3) The detention facility on Bagram Airbase was set up soon after the US’ 2001 military intervention, one of several facilities, but always the main one. It had a bad reputation for abuses in the early years as Human Rights Watch reported in 2004:
Afghans detained at Bagram Airbase in 2002 have described being held in detention for weeks, continuously shackled, intentionally kept awake for extended periods of time, and forced to kneel or stand in painful positions for extended periods. Some say they were kicked and beaten when arrested, or later as part of efforts to keep them awake. Some say they were doused with freezing water in the winter. Similar allegations have been made about treatment in 2002 and 2003 at US military bases in Kandahar and in US detention facilities in the eastern cities of Jalalabad and Asadabad.
As a 2013 report by the Open Societies Foundation made clear, Bagram was one of a number of sites in Afghanistan which was centrally important to the CIA globally, as a place where detainees were rendered to (some still remain in Bagram in US hands), as a transit point for detainees being sent on to Guantanamo and third countries and as a place of torture and interrogation of foreign nationals in its own right.
The CIA interrogated detainees held in metal shipping containers deep inside this Airbase. Detainees held in this detention center were “sometimes kept standing or kneeling for hours, in black hoods or spray-painted goggles, according to intelligence specialists familiar with CIA interrogation methods. At times they [were] held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights — subject to what are known as ‘stress and duress’ techniques.”
(4) The UK military was forced by the High Court in London in April 2012 to detain Afghans in Camp Bastion in Helmand after it had ordered a moratorium on transferring detainees to the NDS because of a court case involving a detainee who was transferred to the NDS and allegedly tortured. In June, the issue was resolved when the detainees requested to be moved to the ANDF. See reporting here.
(5) The 2012 memorandum of understanding bound Afghanistan to consult the Americans on releases and “consider favourably” any US assessment that the continued detention of any detainee was necessary to prevent him “engaging in or facilitating terrorist activity” (article 9).
(6) In the earlier years, there was what appears to have been another facility, a CIA-operated black site, also known as the Black Prison, about which information emerged via lawyers speaking to their clients held at Guantanamo:
Eight detainees now held at Guantánamo described to their attorneys how they were held at a facility near Kabul at various times between 2002 and 2004. The detainees, who called the facility the ‘dark prison’ or ‘prison of darkness’, said they were chained to walls, deprived of food and drinking water, and kept in total darkness with loud rap, heavy metal music, or other sounds blared for weeks at a time.
(7) He said there were more translators working after the handover; most were still Farsiwan, he said, but there were more Pashto-speakers. In general, he said most staff were Tajik and other non-Pashtuns and there were a lot of problems with regional dialects as native Tajiks could not, for example, make sense of detainees speaking with a Khosti or eastern accent.
(8) In March 2013, AAN reported on the soon to be announced agreement on Bagram, including this overview of the agreement given to AAN by the presidential spokesman, Aimal Faizi:
The new MoU does not use administrative detention under [Additional Protocol II to the Geneva Conventions] to deal with detainees, including those the US deems most dangerous. The highest Afghan legal authorities, he said, including the minister of justice and head of the supreme court, had been looking at how to work within appropriate and “existing Afghan laws”. They believe existing court powers to order extensions of the period a detainee is held at various stages of the investigation and trial periods could mean, if all were used, an accused person held for a maximum of about 10 months, although he would then have to be convicted or released. He said the legal authorities were also looking into an article in the anti-terrorism law which might well provide a “special mechanism”. The text of this clause is vague in the extreme; it allows the attorney general to secretly provide the court with documents and evidence on a terrorist case and ask for “temporary provisions” – something which is left undefined.
The relevant article from the Law of Anti-Terrorist Crimes (as translated by AAN) is:
i) The Attorney General, based on the evidence that has been provided by the Financial Intelligence Unit of the Central Bank, the NDS and the Police, after consultation with the National Security Council, can implement temporary provisions against an individual, organization (sazman) or institution (mu’assasa) which has been accused of providing financial support for terrorist activities and/or is accused of being a financial supporter of terrorist activities, according to UN standards.
ii) If evidence for an accusation regarding a terrorist case has been collected, the Attorney General will submit the documents and evidence, based on the law, to the authorised court secretly and ask for necessary provisions.
(9) The April 2012 MoU on the Afghanisation of Special Operations says:
…the [Afghan Special Operations Unit] can enter private compounds, residential houses, and other areas for the purposes of search and arrest, in accordance with Afghan laws, with support from U.S. Forces only as required or requested… (article 5c)
However, the MoU does not ban the US from detaining; indeed there is something of a get out clause in this respect.
Any Afghan nationals detained by U.S. Forces outside special operations are to be released or transferred to Afghan authorities to be prosecuted or held in accordance with Afghan laws, including AP II. (article 9)
(10) Article 7 of the March 2012 Memorandum of Understanding says:
Afghanistan affirms that it is to provide the United States and relevant humanitarian bodies sufficient access to transferred detainees for the purpose of monitoring the application of the provisions of international humanitarian law.