Afghanistan Analysts Network – English

International Engagement

The Other Guantanamo 5: A New MoU for Bagram and, Finally, a Handover?

Kate Clark 9 min

The Pentagon has announced and the Afghan presidential palace confirmed that the US military will hand over its detention facility at Bagram Airbase to the Afghan authorities tomorrow, 25 March 2013. The presidential spokesman, Aimal Faizy, told AAN the two governments have negotiated a new Memorandum of Understanding (MoU), which, unlike the first MoU on Bagram signed a year ago, will not authorise detention without trial. He also said it would not give the US a veto on the release of any detainee and would oblige it to hand over detainees within 96 hours of arrest. Faizy said all detainees will have been transferred ahead of tomorrow’s ceremony, including the 38 individuals considered particularly dangerous by the US which it has held onto because of fears that the Afghans would release them. AAN senior analyst, Kate Clark, who has been closely following the machinations of the handing over of Bagram for the last twelve months, says tomorrow’s deal – if the spokesman is correct concerning its contents – looks like a significant victory for President Karzai.

 

The detention centre on the Bagram air base has been like piece of grit between President Karzai and the US, for years, inflaming and exacerbating tensions in their relationship. Since a MoU on handing over Bagram was signed in March 2012, we have seen transfers stop and start, deadlines broken and two handovers delayed. Each agreement on transferring the detention facility, hailed as a victory for Afghan sovereignty by President Karzai, has been transformed into a slap in his face after it was derailed or delayed. The same points of contention have repeatedly arisen: Afghan demands for sovereignty over Afghan prisoners, US fears that dangerous men will slip out of a leaky Afghan justice system back onto the battlefield and an Afghan reluctance to hold its citizens without trial. This deal, then, is crucial as patience has been wearing thin on both sides.

New negotiations were necessary, it seems, because the original MoU signed in March 2013 (see text and analysis here) has come so badly adrift. It was issued on the last day of an ultimatum delivered by Karzai demanding Bagram be handed over and, along with a second MoU on night operations (see here), committed the Afghans to use detention without trial also known as internment and administrative detention) on the basis of the 2nd Additional Protocol (APII) of the Geneva Conventions. APII recognises that a state may detain its citizens without trial during war time. (1)

APII was referred to, not only in the two MoUs, but also in a secret document, an inter-ministerial agreement on the procedure or the handover which was signed by the most senior Afghan officials – the ministers of defence, interior and justice, the director of the NDS, the chief justice and the attorney general (read the text here). The Procedure, in turn, referred to an unpublished presidential decree, the contents of which AAN has not been able to see. AAN checked with the president’s legal advisor in March 2012 and he confirmed that Afghans would be using administrative detention at Bagram.

However, what is legal under the laws of armed conflict may still be illegal under domestic law and in this case, there appeared to be an inherent clash between the MoU and an Afghan constitutional requirement that anyone who is detained must either be released within 72 hours or handed over to the Attorney General’s Office. Problems with the MoU on the Afghan side began to emerge, but only belatedly. Two months after it was signed, when transfers had already started and the Afghan authorities had started to hold some of its citizens without trial, the president’s spokesman flatly denied they were doing so (see report here):

… we are against any detention without trial. For us, nobody can be held without trial. Everything has to be in accordance to the Afghan laws.

The agreement on Bagram started to unravel, it seems, because the Afghan president was reluctant to implement what his government had agreed to, ie detention without trial, although some ambiguities in the text had also allowed room for differing interpretations. A handover ceremony did go ahead in September, but by then, the US military had halted transfers and was refusing to hand over the 38 particularly dangerous detainees against whom it only had classified evidence and whom it feared might subsequently be released. The US has believed all along that detention without trial is the only option for such men. President Karzai has been adamantly opposed to this and was furious at the halt to the transfers.

In January, after Presidents Karzai and Obama met in Washington, it was clear they had sorted out at least the bones of a new deal on Bagram. Karzai said: ‘Concerning Afghan sovereignty, we agreed on the complete return of detention centres and detainees to Afghan sovereignty, and that this will be implemented soon after my return to Afghanistan.’(2)  (See AAN reporting here).

When AAN spoke to the Afghan director of Bagram, General Farouq Barakzai, in late February, he said transfers were again in full swing and negotiations on a few final issues were underway. He said the transfer of the facility was scheduled for 9 March. Three days before that date, President Karzai announced the handover to Parliament. Then, once again, it was delayed. The trigger for this may well have been Karzai’s own remarks to members of parliaments (as reported here) which suggested that he, himself, and not judges or indeed the various panels set out in the MoU, would decide on releases:

We know that many innocents are languishing in this prison. Despite all the expected criticism, I will order the release of innocents so they can go to their homes… But people who are involved in killing Afghans by shooting them or bombing them will meet their punishment. 

Given the President’s power to pardon detainees, including in secret (for details, see here), it is not surprising the US may have backed down from the handover at this point. However, according to Faizy, the delay came from the Afghan side. He said the president had only got to see the text of the new MoU on the 8th – it had been negotiated by the Afghan in charge of Transition, Ashraf Ghani and the head of the National Security Council, Dadfar Spanta – and Karzai objected to the US military continuing to have an effective veto on releases and access to detainees for the purposes of interrogation once they had been handed over. So the negotiators were, once again, set to try to thrash out a final, acceptable text of the MoU. 

On Monday, in Washington DC, the Pentagon announced an agreement had been reached and the detention facility would be handed over to the ‘sovereign control of Afghanistan on Monday’:

The secretary [of state, Chuck Hagel] welcomed President Karzai’s commitment that the transfer will be carried out in a way that assures the safety of the Afghan people and coalition forces by keeping dangerous individuals detained in a secure and humane manner in accordance with Afghan law.

It has given no further details and a US military spokesman in Kabul declined to speak about the handover so, it has to be stressed, information about the contents of the MoU is based solely on an interview with Faizy. He gave AAN the following overview:

The new MoU does not use administrative detention under APII 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; (4) 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.

This looks like a fudge, but one which, it seems, both sides are happy enough with. Human rights activists concerned with due process and fair trials, however, may well have objections.

Faizy said the US would not enjoy a veto over the release of any detainees in the future. As for the 38 individuals, it seems the current arrangement in the March 2012 MoU may hold, ie the ‘Joint Committee’, made up of the Afghan Minister of Defence and the Commander of US forces may get to review files together of any whom the Afghan authorities wanted to release. This would be the only joint US-Afghan body operating at Bagram and would have very limited powers.

Faizy said all the Afghan detainees (5) held at Bagram would have been transferred by tomorrow: ‘We are committed not to set those 38 free,’ he said, ‘but to detain them in accordance with Afghan laws.’

He said the US military had wanted access to detainees after they had been transferred, but the president vetoed this. Instead, the US would be able to pass on any intelligence to the NDS for investigation and forwarding to the Afghan Review Board. Under the March 2012 MoU and the Inter-Ministerial Procedure and according to interviews with General Barakzai, the Board has operated for much of the last year. It is made up two people each from the Ministries of Interior, Defence and NDS and has the job of investigating, developing and assessing detainees’ cases, with the help of the NDS and Attorney General. At a detainees’ hearing by the Board, he has a defence lawyer and legal advisor and can bring elders or witnesses to vouch for him. The Board, which has been seeing about 7 detainees every day, can recommend their release, trial or administrative detention. The new MoU will take away that last option and it is not yet clear if its role will be changed in any other way.(6)

It should be said again that the information for this blog has come from the Afghan government only.  On the face of it, however, it does look like the US has backed down. However, in previous agreements, the US has shown itself adept at appearing to back down, to give the Afghans the language they want, but to work with textual ambiguities to keep doing what it wants to do.  In other words, only when we see the text of the MoU and how it actually works will it become clear where and how far compromises have been made.

It has become imperative for the two sides to reach a working agreement on Bagram that satisfies both governments enough so that it will not again be derailed. Bagram is important. It is a symbol of the US military presence, infamous in its early days for torture by US forces (see reporting here). Although conditions and due process have improved under US control, it remains a rallying cry for the Taleban and indeed any Afghan upset with foreigners being in his or her land (see for example recent comments by the pro-government Ulama Council, reported here which just stopped short of calling for a jihad against the ‘infidels’). Getting control of it is key to President Karzai’s sense of himself as a sovereign leader. The detainees there may also become important bargaining chips in any of his dealings with the Taleban. Moreover, if the US and Afghanistan cannot sort out a working deal on Bagram, the chances of them reaching a Bilateral Security Agreement to govern a US military presence after 2014 must surely be close to zero.

Also underlying all the tension, however, is a dispute about whether the US military should be detaining Afghans at all. In September, part of Karzai’s anger was due to his belief that the MoUs on Special Operations and Bagram, specifically a 6 month transition period in the Bagram MoU, had simply made it illegal for the US military to carry on arresting Afghans after September 2012, let alone holding them. Citing the texts of the same MoUs however, the US military, said: ‘the U.S. retains the authority to capture and hold detainees who have been captured in accordance with the Law of Armed Conflict.’

That tension is still there. According to Faizy, the president has been insisting that US forces should be taking part in ever fewer engagements and so their detentions should be minimal. Only if Americans come under attack, he said, should there be any unilateral engagements. Otherwise, operations should be carried out by Afghan forces, with help from the international forces if requested; in the latter case, the Afghans would detain. ‘The insurgency is an internal issue,’ he said. ‘It’s not their business to fight the insurgency in Afghanistan… The president must be listened to. Afghan sovereignty must be reached.’

(1) Additional Protocol II acknowledges that when a state is at war, it may deprive its citizens of ‘their liberty for reasons related to the armed conflict.’ There are obvious grounds for concern for its use in Afghanistan, given that the war is open-ended – prompting the question of when and how an individual may no longer be deemed a threat – and the Taleban, not identified by uniform or membership card, mingle among the civilian population, making false arrest easy. Under internment, people are detained not for what they are suspected of having done – when the criminal law would prosecute them – but because of what it is feared they might do if they were free. This makes defending oneself especially difficult.

(2) The presidents’ joint statement said:

…the Presidents committed to placing Afghan detainees under the sovereignty and control of Afghanistan, while also ensuring that dangerous fighters remain off the battlefield.

(3) Not all ISAF contributing armies detain. Of those that do, all hand over to the NDS, except for the UK which currently has a British High Court ban on transfers because of the danger of torture (see report here) and the US which has always run its own detention facilities, centred on Bagram.

(4) The article from the Law of Anti-Terrorist Crimes, which may prove helpful, is particularly imprecise. AAN’s translation is as follows:

Temporary Provisions

Article 22:

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.

 

(5) About 50 foreign, mostly Pakistani, detainees will stay in US hands.

(6) Access by the US military and humanitarian organisations to monitor transferred detainees will still be allowed. Indeed, Faizy said, the president is much in favour of this.

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