Afghanistan and the United States Struggle over Releases of Detainees

After control of much of the Bagram detention center was handed over to Afghanistan in 2012, President Karzai “ordered authorities to review the cases of more than 3,000 prisoners” held at Bagram.[1]  In the course of 2012, “570 detainees have been released after acquittal in Afghan courts.”[2]  Nearly 1,000 prisoners have been released in 2012 overall, including prisoners whose cases never reached the Afghan courts.[3] This post analyzes the factors underlying these releases, and reports on the latest developments in the process of the United States’ handing over its detainees to Afghanistan.

Shortly before Afghan President Hamid Karzai visited the United States, in January, 2013, the Afghan government released 209 detainees – 80 on January 4th,[4]  and 129 on January 5th.[5]  At the January 4th release, both television journalists and family members of the released were in attendance.[6]  Those 209 released over a two-day span are by no means all the detainees who will be released. According to General Ghulam Farooq, “who took over running Bagram prison from the US last year,”[7] a total of 485 prisoners are scheduled to be released in 2013, or have already been released, on grounds of insufficient evidence.[8]

Piecing together comments from a variety of sources, we can see that the many releases have a three-fold purpose: to improve relations between the government and its citizens, to establish Afghanistan’s sovereignty over how prisoners are handled, and to bring the Taliban into peace talks.[9]

First, “timing the move on the day before Mr. Karzai leaves for Washington to visit President Obama … also highlights his independence as a leader.”[10]  Interviews with local residents appear to confirm that the public display is necessary:

“The release of these prisoners will definitely have a positive impact on people’s relationship with the government,” said Haji Sangeen, 48, a truck driver from Paktia who came to collect 12 of the detainees who hailed from his village. “It will bring the distance between the government and people to a minimum.”[11]

Given the unusual public display of the released detainees mentioned earlier, the government appears to be very conscious of its image with its own citizens.[12]

Second, Afghanistan is demonstrating its sovereignty by releasing detainees at a rapid pace. General Farooq contends that “[i]t is a 100 percent Afghan process, and the Americans don’t have any problem with it. They are not involved in it at all.”[13] The theme of establishing sovereignty apart from any perceived US or international involvement repeatedly appears in Afghan government decisions. Recently, for example, President Karzai banned US special operations forces from certain areas within Afghanistan. Among the reasons: “Afghan officials … and many in the Karzai administration no longer wish to allow Americans to continue ‘running roughshod all around our country,’ said a person who is close to Mr. Karzai.”[14]

Though establishing Afghan sovereignty is a positive step forward in the long run, it creates immediate problems in the relationship between Afghanistan and the US. Specifically, the issue of detainee handling has been a “considerable source of tension,” since actions taken by both the US and Afghanistan have appeared to jeopardize the final handover of the remaining detainees covered by the March, 2012 handover agreement.[15]  As we will see below, however, both countries have persisted in carrying the handover agreement forward.

Third, while these detainees were apparently released based on a lack of evidence,[16]  General Mohammad Yar Barakzai, “an Afghan defense ministry official in charge of the prisons,” added, “[w]e are sure their release could further help the government efforts in bringing peace and will support the peace and reconciliation process in the country.”[17]

The “peace and reconciliation process” likely includes talks with the Taliban, since “Karzai and other leaders have repeatedly offered peace talks with the Taliban.”[18]  These repeated offers may seem to be independent of the decisions about detainee release, but “[s]ome Western officials believe that the move by the Afghan government is designed to encourage reconciliation with insurgents to help put an end to the war.”[19]

The Taliban, however, have “categorically rejected the offer, saying there will be no talks until foreign troops leave the country.”[20]  Moreover, the Taliban released a statement indicating “that they will continue to fight with the government and foreign forces if any foreign troops stay in the country after 2014.”[21]  Thus, any “reconciliation” hopes with the Taliban may largely be determined by US policy in Afghanistan, perhaps irrespective of the latest prisoner releases.

Meanwhile, a New York Times article dated March 9, 2013 demonstrates that prisoner releases remain controversial:

The ceremony and the transfer of the last of nearly 4,000 Afghan prisoners from American to Afghan custody was called off by the American military commander, General Joseph F. Dunford Jr., at the last minute late Friday after President Hamid Karzai the day before rejected several important provisions in the transfer agreement.[22]

However, President Karzai’s office issued a statement indicating that the transfers will still take place in the coming weeks, “allowing time for some of the remaining technical details concerning the handover to be resolved.”[23]  While a senior Defense Department official said that the “last-minute hiccups” were “not terribly substantial,” some Western officials were not optimistic, since the reasons why the transfer was called off at the last minute were the same lingering reasons that had not yet been resolved since the signing of the MoU in March of 2012.[24] Specifically, the US wishes to keep veto power over any detainees the Afghans release, since the detainees include certain dangerous prisoners.[25]

On March 25, 2013, both countries signed a new MoU, which essentially resolves the lingering issues previously mentioned and hands sovereign control of the Bagram detention facility to Afghanistan.[26]  Most importantly, the new MoU reportedly “will not authorise detention without trial,”[27] a legal issue that Detained By U.S. has written extensively about.[28]  However, detention without trial may still be in effect, since, as I’ve written elsewhere, “it appears the ‘highest Afghan legal authorities’ have been looking for methods to extend detention within ‘existing Afghan law.’”[29]

Another key provision left out of the new MoU is the veto that the US has over releasing prisoners. The US was principally concerned about a number of prisoners whom it considered especially dangerous. However, “for the 38 [particularly dangerous Afghan] 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.”[30]

Lastly but also importantly, the US must hand over any new detainees within 96 hours of arrest. It can be reasonably inferred that both parties anticipate that the US will continue to detain new prisoners.

How effective this MoU will be in practice and what additional policy decisions the US will take in Afghanistan, have yet to be determined.

 


[1] Thomas Whittle, Nearly 130 Afghan Prisoners Released from Bagram Prison, NZweek (Jan. 7, 2012), http://www.nzweek.com/world/nearly-130-afghan-prisoners-released-from-bagram-prison-41030/.

[2] Azam Ahmed & Habib Zahori, Afghanistan Frees Detainees in Show of Sovereignty before Karzai Visits U.S., N.Y. Times (Jan. 4, 2013), http://www.nytimes.com/2013/01/05/world/asia/afghanistan-releases-detainees-ahead-of-trip-by-karzai-to-washington.html?ref=asia&_r=0. It seems likely that most of these releases came after the signing of the handover agreement in March, 2012, but the article does not specifically state when in 2012 the 570 detainees were released.

[3] Id. The article does not clarify how many of the other 430 released were either acquitted in court, or were freed for other reasons.

[4] Id.

[5] Whittle, supra note 1.

[6] Ahmed & Zahori, supra note 2.

[7] Ben Sheppard, Afghan Detainees Walk Free from Jail in Push for Peace, AFP (Jan 5, 2013), http://www.google.com/hostednews/afp/article/ALeqM5ggQVNr8uxWLLBRWUHy9dmcNACvgg?docId=CNG.59fd5ac563140bc140510455504de8ec.3f1.

[8] See Ahmed & Zahori, supra note 2.

[9] Whittle, supra note 1.

[10] Ahmed & Zahori, supra note 2.

[11] Id.

[12] See id.

[13] Id.

[14] Mathew Rosenberg, Afghanistan Bars Elite U.S. Troops From a Key Province, N.Y. Times (Feb. 24, 2013), http://www.nytimes.com/2013/02/25/world/asia/afghanistan-orders-us-troops-from-key-province-of-wardak.html.

[15] Ahmed & Zahori, supra note 2. On the controversy around the U.S.-Afghan handover, see Astrid Avedissian, U.S. Refuses to Transfer Some Detainees in Handover to Afghanistan, Detained by U.S. (Oct. 22, 2012). On the proper interpretation of the Memorandum of Understanding (MoU) that guides the handover, see Byron Zinonos, When Are Afghan Detainees Captured After March 9, 2012 Being Transferred?, Detained by U.S. (Dec. 31, 2012 – Jan. 2, 2013).

[16] See id. Ahmed and Zahori specifically refer to the lack of evidence for the 80 detainees released on January 4, 2013. They go on to explain that an additional 485 detainees will be released (or already have been), after “a bilateral board of Afghans and Americans determined that there was not enough evidence to prosecute them.”

[17] Whittle, supra note 1.

[18] Id.

[19] Ahmed & Zahori, supra note 2.

[20] Whittle, supra note 1.

[21] Id.

[22] Rod Nordland & Charlie Savage, U.S. Again Delays Transfer of Bagram Prison to Afghan Forces, N.Y. Times (Mar. 9, 2013), http://www.nytimes.com/2013/03/10/world/asia/us-delays-transfer-of-bagram-prison-to-afghan-forces.html?ref=asia.

[23] Id.

[24] Id.

[25] Id.

[26] Kate Clark, The Other Guantanamo 5: A New MoU for Bagram and, Finally, a Handover?, Afg. Analysts Network (Mar. 24, 2013), http://www.aan-afghanistan.org/index.asp?id=3310.

[27] Id.

[28] On the constitutionality of detention without trial under the Afghanistan Constitution, see Heather Hicks, Does Afghan Law Permit Detention Without Trial?, Detained by U.S. (forthcoming). On the controversy around the U.S.-Afghan handover, see Astrid Avedissian, U.S. Refuses to Transfer Some Detainees in Handover to Afghanistan, Detained by U.S. (Oct. 22, 2012).

[29] Mike Yang Zhang, Update: 2012-2013 US to Afghanistan Detainee Handover – Statistics and Prospects,  Detained by U.S. (May 20, 2013) (quoting Clark, supra note 26).

[30] Clark, supra note 26.