The Afghan Review Structure for Detainees After the United States-Afghanistan Detainee Transfer (Part 1)

The Afghan Review Structure for Detainees After the United States-Afghanistan Detainee Transfer (Part 1)

The Afghan review procedures and standards for detainees who have been transferred from United States control contain numerous problems. The procedures are unclear; rules of evidence are obscure; and criteria for determining whether detainees are criminally prosecuted, detained without trial, or released, are ambiguous.

These problems have been amplified by a necessity to implement a complex review structure within a six-month deadline[1]  set by the Memorandum of Understanding (MoU), signed by the U.S. and Afghanistan on March 9, 2012.[2]  I will briefly explain this review structure and then provide a detailed explanation of the three different tracks that a detainee under Afghan control may fall into. As we will see, all three suffer a lack of clarity and efficiency, due to vague language that leads to a potentially wide and harmful scope for interpretation.

After Afghan detainees are formally transferred from U.S. to Afghan control, their cases go before an Afghan committee, called the Technical Committee (comprised of fifteen representatives from the Ministry of Defense, Ministry of Interior, National Directorate of Security (NDS), Supreme Court, and the Attorney General’s Office),[3] which decides whether to criminally prosecute, release, or order detention without trial.[4]  Criminally prosecutable cases are sent to a criminal court located within the Bagram facility (the Justice Center in Parwan, or JCIP). The remaining cases are sent to another three-person review board, called the Afghan Review Board (made up of representatives from the Ministries of Interior, and Defense, and the National Directorate of Security),[5] which either recommends detention without trial, or an immediate release.[6]

Penultimately, if the Afghan Review Board advises for release of the detainee, the case is first sent to the Bagram Transfer Commission (made up of five ministers, under the chairmanship of the Minister of Defense).[7]  If this Commission agrees with the Afghan Review Board’s recommendation for release, the case is ultimately sent to a joint U.S.-Afghan “bilateral committee.”[8]  Each stage mentioned above presents numerous problems arising from both the procedures and the standards to be applied.

 

The Technical Committee: Who It Is & What It Does

 

The first review board, called the Technical Committee, determines whether cases are sent for trial under Afghan law, or go to the three-person Afghan Review Board that decides on detention without trial.[9]  The Afghan government established the Technical Committee through an unpublished Presidential Decree, without “any legislative action or consultation, raising serious concerns about legality and constitutionality.”[10]  While this Decree is unpublished and currently unavailable, a document establishing the procedures for detention without trial is unofficially published, called “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” (hereafter referred to as the Bagram Procedure).[11]

According to a recent report by the Open Society Foundations, called Remaking Bagram, the Bagram Procedure is “vaguely worded, resulting in troubling uncertainty over who can be detained, on what grounds, and for how long.”[12]  Problems with the Bagram Procedure aside, it refers to the unpublished Presidential Decree, which is both dateless and numberless. The actual existence of this Decree may be questionable, since no organization has yet to review its contents, nor has it yet been made available.[13]

According to Judge Mahmoud Ahmadi, a Supreme Court representative to the Technical Committee, the Committee decides on a consensus basis “whether there is enough evidence that would be admissible in Afghan courts to warrant a transfer of the case for criminal prosecution.”[14] This evidence includes “witness statements by international or Afghan forces, or forensic evidence such as fingerprints and explosive residue tests, and photographs of the detainee or of weapons … allegedly used by or in the possession of the detainee. Files may also contain classified information or evidence, including intelligence reports from U.S. or Afghan military and intelligence agencies.”[15]

There are several stark problems with the Technical Committee’s procedures in determining a detainee’s fate. First, nothing in the Open Society Foundations report provides comprehensive information on how the information is to be gathered, how the information is vetted, the weight given to certain pieces of evidence, or how much evidence the Technical Committee in theory believes is needed to meet a sufficient standard for a criminal charge in the newly created courts within Bagram.

Second, there is reason to believe that evidence with which the Technical Committee is satisfied may be insufficient for criminal trial. The evidence that is reviewed by the Technical Committee may consist of “just three or four pages,” which indicates that the threshold for sufficient evidence (by Technical Committee standards) is in practice very low.[16]  In certain cases, the deficiency of evidence is so serious that prosecutors (in the JCIP) have referred cases back to the Technical Committee with a request for more evidence.[17]  Hence, the standards are not consistent or clear, even though the Technical Committee screens detainee cases for the Afghan courts. As a result of such insufficient standards, a detainee’s case is further delayed when sent back.[18]

A third issue is the overdependence by the Afghan authorities on the U.S. for evidence. The U.S. government has been unwilling to share as much evidence as necessary with the Afghan authorities in order to sufficiently demonstrate the guilt of a detainee.[19]  “Resistance to declassification and information sharing may stem from a more general mistrust of Afghan security and intelligence officials.”[20]  As a result, the U.S. has sometimes withheld information, or allowed Afghan officials to view classified information under very limited circumstances.[21]  Nevertheless, if the U.S. objects to an Afghan recommendation for release (more on this in the next post), “the Americans would re-examine the full, still-classified file to see whether there was a way to show the Review Board more information.”[22]

Lastly, neither the detainee nor detainee’s counsel may review the classified evidence that is made available to the Technical Committee.[23]  In fact, both the Bagram Procedure and the Open Society Foundations report are silent on whether the detainee has any ability to contest his detention at this stage. Given this silence, it appears that the Technical Committee unilaterally decides whether or not there is sufficient evidence for a criminal trial, often on the basis of classified information, without any rebuttal from the detainee or detainee’s counsel, arguably a severe breach of due process for the detainee.

The above-mentioned issues highlight not only a disconnect between how much information the Technical Committee considers legally sufficient to convict, and what prosecutors indicate is sufficient to convict under Afghan law, but also the lack of due process protections for a detainee at this stage. It should be noted that, according to article 9 of the Bagram Procedure, the Technical Committee would review detainee cases every six months as a safeguard.[24]  But the value of this safeguard is questionable, since the same issues presumably arise regarding evidence and the right to effective counsel. In other words, there are no indications of any more protections or rights added to the review process after the first six months.

 

In our next post, we’ll discuss the three tracks a detainee will face after the Technical Committee.

 


[1] Open Society Founds., Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power 4, 18 (Sept. 6, 2012), http://www.soros.org/sites/default/files/BagramReportEnglish.pdf.

[2] Memorandum of Understanding Between the Islamic Republic of Afghanistan and the United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, Afg.-U.S., Mar. 9, 2012, http://mfa.gov.af/en/news/7671.

[3] Kate Clark, Terms of Internment, Foreign Policy (Jun. 1, 2012), http://afpak.foreignpolicy.com/posts/2012/06/01/the_terms_of_internment.

[4] Open Society Founds., supra note 1, at 4.

[5] Clark, supra note 3.

[6] Charlie Savage & Graham Bowley, U.S. to Retain Role as a Jailer in Afghanistan, N.Y. Times (Sept. 5, 2012), http://www.nytimes.com/2012/09/06/world/asia/us-will-hold-part-of-afghan-prison-after-handover.html?_r=3&pagewanted=all.

[7] Kate Clark, The Other Guantanamo 2: The Afghan State Begins Internment, Afghanistan Analysts Network (May 23, 2012), http://aan-afghanistan.com/index.asp?id=2785.

[8] Clark, supra note 3.

[9] Open Society Founds., supra note 1, at 18.

[10] Id. at 11. On the constitutionality of detention without trial under the Afghanistan Constitution, see Heather Hicks, Does Afghan Law Permit Detention Without Trial?, Detained by US (forthcoming).

[11] Clark, supra note 7. Kate Clark presents the full text, in unofficial translation, of the Bagram Procedure. To access this document, see this site.

[12] Open Society Founds., supra note 1, at 3.

[13] Clark, supra note 7.

[14] Open Society Founds., supra note 1, at 19.

[15] Id.

[16] Id. at 20.

[17] Id. In addition to the power to refer cases back to the Technical Committee with a request for more evidence, the prosecutors apparently have the power to recommend release. The Bagram Procedure does not mention the prosecutor’s power to recommend release, but the Open Society Foundations report does. Id. at 19. The report presents a flow chart indicating that when the prosecutor recommends release, the case goes directly before the final joint U.S.-Afghan “bilateral committee,” bypassing both the Afghan Review Board and the Bagram Commission. Id at 33.

[18] Id. at 19.

[19] Savage & Bowley, supra note 6.

[20] Open Society Founds., supra note 1, at 19.

[21] Savage & Bowley, supra note 6.

[22] Id.

[23] See Open Society Founds., supra note 1, at 20.

[24] Clark, supra note 7.