From Ludecke to Boumediene: A Path to Habeas for Bagram Detainees?

“Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.” Justice Frankfurter, Ludecke v. Watkins, 335 U.S. 160, 169 (1948).

In light of the Global War on Terror, the fate of the 66[1] foreign nationals detained in U.S. custody at Bagram is a veritable dark cloud hanging over American foreign policy.  Their <Read More>

US Detainee Transfers: What Responsibilities Does the US Have When Presented with the Risk of Torture in Afghan Prisons?

As recently reported by Mike Yang Zhang,[1] a United Nations report released on January 20, 2013 revealed “systematic torture” in many Afghan-controlled detention facilities.[2] Shortly after the U.N. report was released, a delegation was assigned by President Karzai to investigate the allegations of torture.[3] After a two-week investigation, the government panel “acknowledged widespread torture of detainees.”[4] The U.N. report proposed recommendations for eliminating these instances of torture, not only to the government of Afghanistan, but also to “Troop Contributing Countries.”[5] <Read More>

The Afghan Review Structure for Detainees After the United States-Afghanistan Detainee Transfer (Part 2)

Track One: The Afghan Criminal Trial

As we have seen, on one track is a criminal trial under the Afghan court system, which is fraught with problems. While these trials are purportedly independent from direct U.S. participation, “[a]ll cases . . .  referred for criminal prosecution are sent to the Justice Center in Parwan (JCIP), an Afghan national security court within the DFIP created in 2010 with extensive U.S. government support.”[1]  Afghanistan continuously and extensively relies on the U.S. to <Read More>

The Legal Infrastructure—and Other Obstacles—Will Make It Difficult to Transition Detainees from U.S. Control to Afghan Control


In order to facilitate a full transition from U.S.-controlled detention facilities to Afghan-run facilities, and ultimately Afghan-prosecuted detainees, the Afghan legal system needs to be able to handle the number and complexity of these cases. But there are numerous obstacles preventing the implementation of an organized legal system in Afghanistan. Some of the major problems include: deficiency of structural facilities such as legal books, buildings, and communication systems, and ignorance of the law by judges in the more remote localities; <Read More>