Detention Process

Please click on the chart below for an expanded pdf image.

Sources:

Jeff Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 2010 Army Law. 9, 15, available at http://www.loc.gov/rr/frd/Military_Law/pdf/06-2010.pdf.

For the most current unclassified documentation of the DRB Procedures, see Letter from Mr. Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, to Senator Carl Levin, Chairman of the Senate Armed Services Committee (July 14, 2010), available at http://www.wcl.american.edu/nimj/documents/addendum.pdf?rd=1 (including the six-page 2 July 2009 Detainee Review Procedures enclosure).

Andrea Prasow, The Bagram Detainee Review Boards: Better, But Still Falling Short, Jurist: Legal News and Research (June 1, 2010), http://jurist.org/forum/2010/06/bagram-detainee-review-boards-show-improvement-but-still-fall-short.php.

Human Rights First, Fixing Bagram: Strengthening Detention Reforms to Align with U.S. Strategic Priorities 10 (2009), available at: http://www.humanrightsfirst.org/wp-content/uploads/pdf/Fixing-Bagram-110409.pdf.

Douglas Stanton, Horse Soldiers: The Extraordinary Story of a Band of U.S. Soldiers Who Rode to Victory in Afghanistan 289 (2009).


UPDATE (by Mike Yang Zhang)

What Happens to Afghan Detainees After the U.S. Hands Them Over to Afghanistan?

From March to September 2012, over 3,100 Afghan detainees were handed over from United States to Afghanistan control. The U.S. and Afghanistan have an agreement on the legal fate of these detainees in a Memorandum of Understanding, which outlines how detainees will be treated under Afghan control.[1] Aside from the Memorandum, there are also two key Afghan documents, which provide essential detail on the issue of what happens to Afghan detainees once in Afghan custody.

One is an unofficially published document establishing the procedures for detention without trial, 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.” The other is an unpublished Presidential decree, which establishes authority for the whole legal process.

The detainee’s case first goes before the Technical Committee (made up of fifteen representatives from the Ministry of Defense, Ministry of Interior, National Directorate of Security (NDS), Supreme Court, and the Attorney General’s Office), which determines if a detainee will be sent for criminal prosecution, for release, or for continued detention without trial.

If the Technical Committee decides on criminally prosecuting the detainee, his case goes before the Afghan courts. If the Afghan prosecutors recommend release at this stage, the detainee’s case goes directly to a final joint U.S.-Afghan evaluation committee (more on this later).

If the Technical Committee decides the evidence is insufficient for criminal prosecution, the case goes to the Afghan Review Board (made up of representatives from the Ministries of Interior, and Defense, and the National Directorate of Security) to determine if detention without trial is necessary.

If so, the detainee is detained without an immediate trial. If the Afghan Review Board instead recommends for release, the case goes to another review commission called the Bagram Commission (made up of five ministers, under the chairmanship of the Minister of Defense). This review commission has no independent authority to release a detainee. Thus, if the commission recommends release, the case goes before a final joint U.S.-Afghan evaluation committee. The detainee is released if this joint evaluation committee recommends for release, but the criteria it uses and the standards it adheres to are unclear.