Today, Thursday, 13 February, the Afghan authorities have released 65 detainees from the Bagram Detention Facility. The Afghan government says they are “suffering innocents” who were illegally detained by the United States military. The US says they are dangerous men with Afghan or foreign blood on their hands who should be going to court, not being given the opportunity to return to the battlefield. So what are the rights and wrongs of this case? AAN has seen copies of the two key legal documents governing Bagram – which have never been released to the public: the Afghan/US 2013 Memorandum of Understanding (MoU) for handing over Bagram and a presidential decree passed in secret at the same time. As AAN Senior Analyst Kate Clark reports, the MoU and decree show the US may be right – in part – in claiming the Afghan government has violated the agreement. Yet, this bitter dispute also shows just how weak the Americans have become in the face of the Afghan state’s assertion of sovereignty.
This is a dispute about evidence and legal procedure. Yet it also touches on deeply sensitive issues of sovereignty, protecting Afghans (from ‘IED makers’ or ‘illegal detention’) and how both sides view the nature of the Afghan war and it has sparked feelings of betrayal and anger on both sides. Working out what has been happening and should be happening at Bagram has been difficult because the key legal documents have been classified. So it was a revelation to see what both sides actually agree to in the March 2013 MoU on handing over Bagram Detention Facility and the presidential decree which set up the Afghan Review Board, the body that decides what to do with detainees.
The MoU was clearly formulated to resolve the earlier impasse over the US handing over Bagram. It has failed to do so: exactly the same conflicts dog the question of what happens to those who are detained by the US military as suspected insurgents. (1) President Karzai has continued to demand that the Afghan state must be sovereign over detainees while the US is concerned always to prevent insurgents finding their way out of the ‘leaky’ Afghan justice system and back onto the battlefield. This was always a realistic fear – see reporting, for example, here and here on two high profile cases of freed Taleban. However, it is true that also non-combatants have ended up at Bagram for long periods of time.
Failing to break the impasse
The initial solution to the conflicting Afghan-US demands – an MoU signed by the two countries in March 2012 (see reporting here, including the text of the MoU which was released) – committed both sides to a phased transfer and to the option of detention without trial, felt by the US to be necessary in dealing with detainees it classed as ‘Enduring Security Threats’ (ESTs). These are men whom the US believes are highly dangerous but against whom there is no prosecutable evidence, for example because it is based on secret intelligence. Transfers of Afghan detainees from US to Afghan custody (2) got under way, but the Afghan government became increasingly reluctant to detain its citizens without trial and, in September 2012, the US, fearing the lack of safeguards would lead to the release of ‘dangerous detainees’, stopped all transfers – to the fury of the Afghan government (see reporting here). The row was only resolved when Presidents Obama and Karzai met in Washington in January 2013 (see reporting here) and the transfer was finally completed on 25 March 2013 after a new MoU was signed. The text of the new MoU, however, was never released, nor was the Afghan presidential decree that was passed in secret to set up the Afghan Review Board.
Of the 889 men handed over from US to Afghan custody in March 2013 and since, the US military says the Afghan Review Board has made decisions on 760. Of those, the board has recommended release for the vast majority – 648 –, sending only 112 for prosecution. 560 men have already been freed. Compare these numbers to the ones given to AAN in July 2013 by the Afghan Commander of Bagram, General Ghulam Faruq Barakzai: “In the last fifteen months [ie from the signing of the 2012 MoU, plus four months after the signing of the 2013 MoU], we have released 2353 people, the majority by the court, with only 600-700 by the Board.” (emphases added). Although the statistics do not measure quite the same thing, they do show a clear recent trend towards release. Clearly, something has changed in how the Afghan authorities deal with detainees, since we can assume the US military is sending the same sort of files and the NDS making the same sorts of investigations into the same sorts of detainees. Indeed, at least as late as July 2013, Barakzai gave no hint of anything but a cordial relationship between US and Afghan officials at Bagram. (3) At some point since, it seems, the relationship soured.
Meetings at the Palace
The current dispute has arisen over 88 of the men whom the Afghan Review Board has said should be released. 65 of them have been freed today, 13 February 2014. Last year, the US military disputed the Board’s original assessment of the 88 and, a US officer told AAN, the military declassified and passed over “reams and reams of intelligence.” Their rule of law team went through each of the 88 files with the most active member of the Board, Abdul Shukur Dadras. The board stuck by its original assessment and the files were then sent, as per the MoU, to the minister of defence and commander of the US military for further scrutiny. There was still no consensus.
The matter was then discussed at two special meetings at the presidential palace chaired by President Karzai (an arrangement outside both MoU and presidential decree). According to the presidential spokesman, Aimal Faizi, the members of the Afghan Review Board, the director of NDS, the ministers of defence and interior and the national security advisor tasked the NDS in December 2013 with going back through its files again. At a second meeting on 9 January 2014, also attended by the Chief Justice, acting head of the Supreme Court, minister of justice and the Attorney General, the officials largely backed the Board’s findings, but did say the NDS had found prosecutable evidence against 16 of the 88. Faizi said the president instructed the other men to be freed.
There was then a third meeting at the Palace, a few days ago on 9 February 2014, which issued new orders. These orders represent a distinct hardening of the government position, although the wording, at least of the Palace statement on the orders, is so vague, everyone is now struggling to understand the exact implications. The key points in the statement are (AAN translation (4)):
- “All temporary arrangements related to Bagram prison” have been declared “null and void”.
- The statement mentioned “as fact” that foreign forces do not have the right to “launch military operations, arrest Afghans or have a prison in our land”.
- Bagram is transferred from the ministry of defence to the ministry of interior (which is in charge of prisons). The man in charge, army general Farouk Barakzai, is now described as a “military police commander” (ie he also appears to have shifted ministries).
- Decisions about detainees already under scrutiny by the Afghan Review Board (described as having fulfilled its duty “independently and with a sense of patriotism” and as having defended the rights and freedom of the country’s citizens) will by made by the Board, but also “checked and prosecuted by the justice and judiciary sectors of the country.”
The precise meaning of these orders is simply not clear. Most significantly, which “temporary arrangements” have been declared null and void? Has the government decided to abrogate from the 2013 MoU, for example, as one government official speaking off the record suggested might be the case? If the US military detains a suspected insurgent, will he now automatically be released when handed over?
The US response, which also referred to the imminent release of 65 of the disputed detainees, was sharp:
This release violates agreements between the US and Afghanistan.
We have made clear our judgment that these individuals should be prosecuted under Afghan law… But the evidence against them was never seriously considered…
The release of these detainees is a major step backward for the rule of law in Afghanistan. Some previously-released individuals have already returned to the fight, and this subsequent release will allow dangerous insurgents back into Afghan cities and villages.
So what exactly are the agreements the US says the Afghan government has violated?
The MoU and presidential decree
Given how much grief the Afghan state endured over the issue of detention without trial, AAN was extremely surprised to discover that the Afghan government had – sort of – again agreed to it in the 2013 MoU:
An Afghan Review Board composed of a retired judge and two prosecutors is to convene under Afghan law and determine the disposition of all Afghan detainees, resulting in prosecution, detention or release. The Afghan Review Board is to consider a recommendation for the disposition of Afghan detainees from the National Directorate of Security. (Section 1, Article 3). (Emphasis added)
A court has to order any continuing detention:
For those detainees who are determined by the prosecutor to be a threat but cannot yet be prosecuted, the prosecutor, in consultation with the National Security Council, is to ask the court for continued detention under Afghan law. (Section 1, Article 4)
The MoU also speaks specifically about Enduring Security Threats – threat here defined as “to the peace and security of citizens” and it appears to commit Afghanistan to their continued detention: “… the Afghan authorities have committed to holding these Enduring Security Threats in detention in accordance with Afghan law and to treating them humanely.” (Section 2 Article 1). In the event the Afghan Review Board determines a detainee to constitute an Enduring Security Threat, “Afghanistan has committed to exercise its sovereign right to detain these individuals according to Afghan law.” (Section 2 Article 3)
The 2012 MoU used the term ‘administrative detention’, in the Dari text further specified as non-judicial (ghair-e qazayi), and referred to the Second Additional Protocol to the Geneva Conventions (APII) which says that a state at war may deprive its citizens of “their liberty for reasons related to the armed conflict”. Those who drafted the 2013 MoU came up with a different, but inherently slippery phrase: “continued detention under Afghan law.”
The problem for the Afghan government in using administrative detention was always squaring it with certain constitutional rights. APII was signed by Afghanistan in 2009, but no corresponding Afghan domestic law was ever passed (so it is debatable whether it is legally enforceable in Afghanistan). Constitutionally, Afghans have no right of habeas corpus, ie for an individual’s detention to be justified in a court of law. However, they do enjoy some safeguards, for example, cases must go to a prosecutor within 72 hours after arrest (even though this rule is not necessarily respected, see here and here and here). Faizi told AAN in early 2013 that the highest Afghan legal authorities, including the minister of justice and head of the supreme court, had been looking at how to work within “existing Afghan laws” to continue to detain those deemed a threat. He said they found that the courts already had the authority to order an extension of the period a detainee is held at various stages of the investigation and trial periods; if all options were used, an accused person could be held for a maximum of about ten months, but after that, he would have to be convicted or released. Faizi also said the legal authorities had been looking into an article in the anti-terrorism law which could provide a ‘special mechanism’. The text of this clause is vague in the extreme; it allows the Attorney General to secretly provide a court with documents and evidence on a terrorist case and ask for “temporary provisions” – a term which is not defined. (5)
So, the phrase used in the March 2013 MoU, “continued detention under Afghan law”, was a fudge. It allowed the final transfer of all the detainees, including the 38 men deemed Enduring Security Threats. The Afghan intention at the time appeared clear, though, as Faizi told AAN just before the MoU was signed: “We are committed not to set those 38 [Enduring Security Threats] free,” he said, “but to detain them in accordance with Afghan laws.” Nevertheless, the ambiguities and room for conflict were inherent in this term. Moreover, it seems the option of “continued detention” has not been exercised.
Not many safeguards: the 2013 MoU system for deciding on detainees
Comparing the systems established under the 2013 and 2012 MoUs, the newer system is far less robust – and I am speaking here about the Afghan system, not about any US role here, which is and was minimal. (6) There is now just one decision-making body, the Afghan Review Board, which is made up of three officials who are appointed by the president. Both NDS and the US military supply evidence to the Board and they can ask for a decision to be reviewed and supply more evidence against a detainee; otherwise, the only safeguard against the Board making a wrong decision is for the files to be sent up to the commander of US forces and minister of defence for a final assessment. (7) Compare this with the system established by the 2012 MoU (8), with its three stage review process which involved security as well as justice officials, a hearing for each detainee and the safeguard of different Afghan bodies checking decisions, without involving ad hoc meetings of the highest officials in the land:
- After detainees were transferred from the US military, their case files were scrutinised by a ‘Committee of Specialists’, made up of representatives of the ministries of interior and defence, the Supreme Court, NDS and the Attorney General’s Office. If there was enough evidence of criminal wrong-doing, the detainees were sent for trial. If not, their cases were sent to an ‘Impartial Review Board’, made up of two people each from the ministries of interior and defence and the NDS. The Board’s role was to investigate, develop and assess the case with the help of the NDS and the Attorney General’s Office.
- The Board held hearings during which the detainee with his defence lawyer and legal advisor could bring elders or witnesses to vouch for him. The Board could advise release, trial or administrative detention.
- If the detainee was not sent to court, his case would be reviewed by the ‘Joint Committee’ made up of an American and Afghan general, acting on behalf of the commander of US Forces and the Afghan minister of defence. They reviewed the assessment of the Impartial Review Board, approving or rejecting its advice with regard to administrative detention, release or trial.
In the current dispute, the cases ended up getting sent to the Palace, thereby opening up the government to the charge that it had politicised the matter. Asked why the executive had come to be mixed up in a justice matter, Faizi said these were ad hoc meetings which had to be held because more junior officials had come under pressure from the Americans. “The officials [at the Palace meetings] made their decision as”, he said, “the government of Afghanistan and the judicial body of Afghanistan.” However, involving the highest officials in the land in assessing detainees’ files certainly represented an escalation of the affair, making it hard – had that ever been desired – to do anything but stand by the Board’s decisions.
Afghan Review Board going beyond its brief?
There is also the question of whether the Afghan Review Board has overstepped its powers. Looking at the presidential decree which established the Board and which AAN has seen an English translation of, and assuming there are no translation errors (repeated requests for the original Dari version were not successful), the decree says the Board’s purpose is to “identify and differentiate suspects, accused and people who are detained without documents and evidence”. It also required the Board to “take serious lawful measures to complete documents of the suspects and prosecute those with charges and release those who are arrested without any document of evidence.” The US military interpret this as meaning the Board can only order the release of those against whom there is no evidence; otherwise, they should be tried by the court or the NDS asked to investigate further.
Apart from this, though, the language in the MoU on which the US might base a demand for a different course of action is weak. The MoU says the Afghan Review Board is to “consider nationally and internationally-gathered information” and “consider” advice or recommendations from the US or NDS. The US is to provide the NDS with releasable intelligence and disposition recommendations to assist it in its recommendation to the Board and the Board should “consider a recommendation for the disposition of Afghan detainees from the National Directorate of Security.” Both the US and the NDS can supply more evidence if the Board decides to release an individual and if the US still disputes the Board’s decision that an individual is not a threat, the MoU says there will be “an exchange of views and…. information between the Minister of Defence and the Commander of US Forces – Afghanistan” (all emphases added). Nothing in this language is binding and the US has nothing even approaching a veto.
Assessing the evidence on the 88: the Afghan view
One of the extraordinary aspects of this dispute has been the gulf between how the US military and the Afghan state portray the evidence against the 88 men. It is difficult to understand how officials could even have been reading the same case files, so different are their conclusions.
Afghan officials say the evidence against at least 72 of the 88 is non-existent, weak or questionable. Presidential spokesman Aimal Faizi explained officials’ doubts when they looked through the case files: “Some only have finger prints proving they touched a weapon recently,” he told AAN, “but Kalashnikovs are commonly found in rural homes. On some individuals, it is written that they were detained because someone said, ‘He is anti-American.’ Or there were traces of explosives found in their clothes, but that could have come from the air or wind or if someone sits in the same car [as someone else who had had contacts with explosives]. It is not enough to put them on trial.” (Dadras has made similar points.) “Those innocents who have been suffering for years, there is nothing in the dossiers that means they should be detained,” Faizi told AAN. “It is illegal to continue their detention. They were detained illegally.”
The reluctance to accept ‘technical’ evidence, such as traces of explosives, finger prints, DNA and so on, appears to be fairly widespread among Afghan judges, not surprising given that these are new methods for most working in the criminal justice system. ‘Confessions’ are much preferred, a preference which has encouraged a tendency to force them out of security detainees in some parts of NDS and the police (see investigations by UNAMA and the Afghanistan Independent Human Rights Commission/Open Societies Foundation here). There is often also a basic uneasiness with what judges perceive as breaches in procedural law – the US military has no power of arrest under Afghan domestic law (see also Dadras’ comments here). However, the US military is mandated to fight in Afghanistan by the UN Security Council and various US-Afghan agreements and as such, military detention has to be a legal course of action, alongside the use of lethal force. At the Justice Centre in Parwan (JCIP), the court on Bagram airbase where security detainees at Bagram are tried under Afghan law by Afghan judges, similar sentiments about breaches in procedural law are common; the result at JCIP, say lawyers, is that judges give sentences generally about a third in length of what they would give the same cases in an NDS court.
Assessing the evidence on the 88: the US view of the evidence
The US insists the evidence against the men is robust, extensive and multi-sourced, enough for all to be sent to trial or investigated further by the NDS. A military officer who asked not to be named said that, of the 88, “at least 59 of the cases could be sent directly to the Saranwal [prosecutor]… for prosecution in an Afghan court. The remaining 29 cases have significant investigative leads necessitating immediate referral to NDS for investigation.” These detainees, said the US, have blood – foreign or Afghan – on their hands. The US military has released details of 37 of the 65 men whose release orders were issued. They include, for example, Nurullah from Barak-e Barak district of Logar, detained in March 2013, according to the US military, with an RPG launcher, rifle, shotgun, RPG boosters, ammunition, a 60 mm mortar system and military explosives. The US has accused him of ordering and conducting attacks on the Afghan security forces and ISAF and of killing one US soldier and wounding four others. Another man due to be released, says the US military, is Abdul Ahad, whom they allege to be a Taleban commander and IED expert captured in December 2012 in Helmand. They say his personal property tested positive for explosives residue and a latent fingerprint on one IED matched his and he was also biometrically matched to another IED which Afghan civilians had triggered in November 2011.
“[The evidence] is never single source,” the US military officer told AAN. “There will be a body of evidence, for example, explosive residue, a witness statement, a confession.” The US military says a court should be deciding these cases, not the Afghan Review Board which they describe as an “administrative screening board.” “If there is no evidence, we have no qualms about [detainees] being released,” said the officer. “If there is evidence or investigative leads, we believe [Afghan Review Board member] Dadras has overstepped his bounds in asking for their release.” The US argues that this issue is about the rule of law and the need for the courts, not the administration, to look at the evidence and decide who is innocent or not. This is ironic given its track record in Afghanistan – its preference for administrative detention, its failure to try those accused of serious crimes in Bagram in the few years after the 2001 intervention and so on (for reporting on the US record, see here).
The US military feels betrayed by how detainees are being dealt with. For the new arrangements to work to the satisfaction of both sides, there needed to be a good working relationship and an atmosphere of trust and respect for the others’ position. However, trust between the allies has gradually been breaking down, on this and many other issues.
Politics trumping everything
AAN has reported sceptically on ISAF and US military claims and the intelligence behind them on detentions, targeted killings and civilian casualties (for example here, here and here) including conducting an in-depth investigation into the intelligence behind a targeted killing in 2010 which actually killed 10 civilians. In the case of the 88 Bagram detainees, however, the US appears to have the stronger case. It is difficult to understand why the Afghan state is so adamant that these men do not go in front of the court and be tried according to Afghan law. If their dossiers are thin, the judges will release them anyway. Moreover, the general impression which AAN found of the Justice Centre in Parwan is that it is good by Afghan legal standards – defence lawyers were unanimous in saying, for example, that unlike the wider court systems, judges there do not take bribes. It is also certainly independent from the US. It seems then that we have to return to politics.
In the nasty way mistrust has come to dominate the relationship between President Karzai and his American ‘allies’, the dispute over Bagram is just one theme. The US sees the 88 disputed detainees as a danger to Afghan civilians, security forces and the foreign military. It sees them as enemies of the state which it spends lives and money supporting and it returns always to its major concern with keeping ‘dangerous insurgents’ off the battlefield. Karzai, however, sees the detainees at Bagram as victims of US oppression. This, for example, is how he described the detention facility on 25 January 2014 (press conference carried live on RTA, via BBC Monitoring):
Bagram is a factory for producing Taleban. Bagram is a place where people are held and they are provoked into loathing their own people, their soil and their country. They are provoked to hate their country. This is a place where people stand against their own people through various means of harassment, torture and mistreatment.
Karzai further asserted that the suggestion that freed prisoners go on to join the Taleban was baseless, Western propaganda, and that those few who did decide to fight did so out of a desire for revenge.
Hearing the president’s remarks, it was difficult to remember that, although its inmates are picked up by the US military, they are quickly passed on to the Afghan authorities now controlling Bagram and that it has been fully in Afghan hands since March 2013. As to torture, according to former detainees, lawyers and human rights groups it does not take place at Bagram, (9) although it is prevalent in certain NDS and Afghan police facilities when dealing with security detainees – as reported by UNAMA, the Afghan Independent Human Rights Commission and here). Nevertheless, for President Karzai, the idea of foreigners detaining Afghan citizens is an anathema. He believes it was outlawed by an MoU on night raids signed in 2012 and is outraged that the Americans keep detaining people. Bearing in mind the pressure he comes under from elders and relatives who come to him insisting ‘their’ people are innocent and the repeated clashes over other aspects of the war – civilian casualties, the use of air power, talks with the Taleban, the BSA – it is no surprise that he believes the US has not behaved honourably over Bagram. Moreover, he sees any suggestion that the US has any say over what the Afghan state does with its people is an affront to national sovereignty.
Today’s release of the 65 may have consequences: two of the United States’ leading senators had already warned in January of “irreparable damage to the relationship” and a “backlash in the US Congress” if any releases went ahead. If the government has decided to abrogate from the 2013 MoU, this would represent a definite escalation of the dispute. Moreover, so far, the US and Afghanistan have been dealing with the relatively ‘easy’ cases for which the US has (it believes) prosecutable evidence. Still to come, according to Aimal Faizi, are the 38 men deemed ‘Enduring Security Threats’.
Some alternative Afghan voices worried about human rights and rule of law
There is a third view of the 88 disputed detainees which cuts across the polarised positions of the two governments. Some Afghans are extremely concerned about the repercussions for rule of law and human rights – the rights of both detainees who might be wrongly held, and of any past or future victims if actual insurgents are released without going to trial. One statement came on 14 January 2014 from 27 Afghan human rights groups who come together in the Transitional Justice Coordination Group (TJCG). They put the issue squarely in the realm of the rule of law and particularly in the context of the 2009 amnesty law (see our analysis here and here) which protects all those accused of war crimes from the pre-2001 period, along with any reconciled insurgents from prosecution. One of the groups emailed a statement to AAN:
[We] believe that the release of Taliban inmates and other terrorist groups by an administrative committee without the verdict of the authorized justice and judicial organs is in contrary with the Constitution [and] International Convention[s] to which Afghanistan is committed, the values of human rights and in contrary to the demand of the victims’ families and the continuation of such illegal process could promote the culture of impunity, insecurity, and war and the relative stability of the country could be jeopardized.
The human rights activists are concerned about those wrongly detained (they should be compensated, they say) but also about the victims of war crimes committed by the Taleban and earlier perpetrators. Their call is for all these cases to be “prosecuted and dealt with through legal process, not a political process.” In this regard, they call for the disbandment of the Afghan Review Board.
Another advocacy consortium, the Detainees Working Group, which is made up of human rights and legal aid organisations and has been working since 2009 to ensure respect for the fundamental rights of (particularly security) detainees and prisoners said, on 4 February 2014 in a statement emailed to AAN, that the release of the detainees would be “illegal”:
Whether initiated by the United States or Afghanistan, the release of detainees must be in accordance with the rule of law. Decisions to prosecute or release should be based on case-by-case assessment of the evidence by Afghan prosecutors and judicial officials, and through regular, transparent legal procedure. The decision to prosecute or release detainees should not be subject to any political interference.
The Detentions Working Group calls on the Office of the President to make clear the legal and procedural basis for the release of such individuals, and in particular, address assertions that there exists evidence sufficient to prosecute some of the detainees recommended for release. The President should consult with the Attorney General Office, which should conduct an independent review of each detainee’s case and the available evidence and recommend prosecution or release, where appropriate.
At the moment though, such Afghan voices which question the releases are drowned out as the dispute is squared up into a clash between the US and Afghan governments. It has left little room for any Afghan-Afghan discussion. What we are left with is the Afghan state exercising its full and sovereign right to deal with its detainees as it deems fit – regardless of what other Afghans might think or whether the US feels the Afghan state has gone back on the 2013 agreement.
(1) The US is the only country fighting in Afghanistan to have set up its own detention facilities. All other countries fighting in transfer military detainees to the NDS. However, this has also been highly controversial, given that it is illegal to hand over a detainee if there is a substantial risk of torture (non-refoulement), which there is in the NDS; see reporting here. The other partial exception is the British army which was forced by UK court proceedings over the issue of non-refoulement to stop handovers to the NDS. Since December 2012, it has transferred detainees to Bagram, via the US military there. See reporting here and here.
(2) Foreign detainees were not handed over to the Afghan government and remain in US hands. Many have been cleared for release but remain in limbo at Bagram. When AAN last reported, in October, 2013, there were more than 60 foreign detainees.
(3) General Barakzai’s in July 2013 gave no hint of the approaching storm:
The Board sometimes wants to release a person and a copy of their decision is given to the US. In some cases, there are some suspicious people or strong evidence, and the Board decides to release them and then the US gives evidence to show the man has been involved in crime, so they discuss and there is cooperation with the US… The Americans do give us more evidence to review. They do not have the right to forbid a release.
(4) The AAN translation of the Palace statement is as follows:
9th February 2014
The work of the ‘Investigation and Inquiry Committee into Bagram Prisoners’ Files’, has been assessed and discussed in a meeting chaired by President Karzai, at the Presidential Palace this evening.
The meeting concluded that the responsible committee for Bagram prisoners has fulfilled its duty independently and with a sense of patriotism and has defended the rights and freedom of the country’s citizens. Therefore, the meeting expressed its appreciation for the work of this committee. The meeting declared all temporary arrangements related to Bagram detention to be null and void, mentioning the fact that foreign forces do not have the right to launch military operations, arrest Afghans of have a prison in our land.
Thus, after this, the Bagram detention centre like other detention centres and prisons of the country will be controlled by the country’s ministry of interior.
The files of those people who are still detained in Bagram detention centre will also be checked and processed by the justice and judiciary sectors of the country.
It should be mentioned that those files which are still being worked on by this committee will also be investigated by this committee and this committee will decide on them.
Participating in this meeting were: the Chief Justice, head of the Supreme Court, the ministers of justice and interior, the attorney general, national security advisor, deputy minister of defence, Judge Abdul Karim Qanet, head of the Investigation and Inquiry Committee into Bagram Prisoners’ Files, member of the mentioned committee Abdul Shukur Dadras, and General Ghulam Faruq Barakzai, the military police commander of Bagram prison.
(5) The relevant article from the Law of Anti-Terrorist Crimes (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.
(6) Under both MoUs, the US hands over a case file with each detainee and can supply additional evidence. Both also mandated the commander of US Forces, along with the Afghan minister of defence (or their representatives) to review disputed cases. The wording of the 2013 MoU is weaker here, saying there will be an “exchange of views… and information”. The 2012 MoU said:
Afghanistan affirms that it is to consult with the United States before the release, including release prior to indictment, of the transferred detainees, and, if the United States provides its assessment that continued detention is necessary to prevent the detainee from engaging in or facilitating terrorist activity, Afghanistan is to consider favourably such assessment. (Section 2, Clause 9) Emphasis added.
(7) After the 2013 handover, the procedure for assessing detainees was as follows (sourcing in brackets):
- After 96 hours, the US military 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. (General Barakzai, commander of Bagram Detention Centre, July 2013)
- 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. (Barakzai)
- The Afghan Review Board considers the detainee’s case in the light of information from the NDS and evidence handed over by the US military. (Barakzai). The Board “is to consider a recommendation for the disposition of Afghan detainees from the National Directorate of Security” (MoU). The US is provide the NDS with releasable intelligence and disposition recommendations to assist it in its recommendation to the Board (Section 2 Article 2). The NDS will consider US information in its submission to the Board and the Board will “consider nationally and internationally-gathered information”. (MoU)
- The Review Board can decide to prosecute, continue detention or release a detainee (MoU). The list of decisions is sent to the Ministry of Defence, the Chief of Army Staff and the US military. Either the US and the NDS can supply more evidence against a detainee whom the Board has decided to release. The Board would then sit for a second time. (Barakzai)
- In the case of a disputed release, the detainee’s files go to the Afghan minister of defence and US commander. (MoU, Barakzai)
(8) The system for assessing detainees, was set up by the 2012 MoU, and fleshed out in a secret document signed by the ministers of defence, interior and justice, the director of the NDS, general director for administrative affairs at the Supreme Court and the Attorney General just before the 2012 MoU was signed: ‘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 Procedure refers to a presidential decree which is un-dated and un-numbered and, if this decree has subsequently been issued, AAN has not been able to read it and its possible contents are not known. (For an analysis and a translated text of the Procedure, see here.)
(9) AAN carried out extensive research in July 2013 to try to assess how the handover had gone. Former detainees reported conditions were reported to be good, far better than in NDS facilities, especially after the 2013 handover after which they got Afghan food. Several said detainees were still being held by the US military for longer than agreed 96 hours and some were taken to a place they called Tor Jail, which is a US investigation and screening facility on Bagram. Detainees reported the US using sleep deprivation there which could be argued is a form of torture, although see the dispatch for discussion on this.
Revisions:
This article was last updated on 9 Mar 2020
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