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.” Afghanistan continuously and extensively relies on the U.S. to help prepare case summaries and provide forensic evidence for trial.
The main reason Afghanistan relies on U.S. help is the lack of technology to convict a detainee. In the past, confessions were often extracted through physical torture under Afghan interrogation procedures. Now, with an increased reliance on proof by fingerprints and explosive residue tests, Afghanistan lacks the technology and expertise to independently handle the massive caseloads of detainee files referred by the Technical Committee.
A secondary concern is the potential for human rights abuses, given the frequency of physical torture in the past, and hesitations about physical torture still being used in the present. Consequently, it is possible the U.S. encourages reliance on its technical expertise as a check against past practices. “The U.S., which is mentoring the judges and the staff at the DFIP [that is, the Justice Center in Parwan, located within the Detention Facility in Parwan, in Bagram], aim to leave behind a system that can withstand international scrutiny … and are keen to persuade both a skeptical Afghan public and international observers that Afghanistan will inherit a transparent and fair judiciary system.” Clearly, the U.S. is fully aware of the extensive problems that other Afghanistan courts experience, and wants to avoid them. On one hand, then, Afghanistan is heavily dependent on U.S. help, which the U.S. wants to provide, but on the other, the U.S. is wary about disclosing all necessary classified information to the Afghan courts for a conviction.
Unfortunately, according to a May 2011 report from Human Rights First, observations from an actual JCIP trial and conversations with Afghan lawyers suggest that defendants on trial lack fundamental due process protections. For example, in the case Human Rights First observed, there appeared to be an assumption of reliability of the evidence against a detainee. In one case, a prosecutor explained why the judge should accept the evidence provided and convict a man suspected to be with the Taliban: “Why would they provide us with wrong information? They have no reason to.”
Finally, it is important to remember that “neither the Afghan nor the U.S. government allows its classified information to be seen by the detainee or a detainee’s legal counsel in criminal prosecutions at the JCIP, though such information is made available to and used by Review Boards.” It should be highlighted again, therefore, that not all the information that the Technical Committee reviews in order to recommend criminal prosecution may be included in the admissible evidence used by prosecutors against the detainee in court.
As of September 5, 2012, 1,638 detainees have been sent to the JCIP for criminal prosecution, and 963 have been referred to the Afghan Review Board (discussed in the next section).
Track Two: Continued Detention Without Trial
Cases without sufficient evidence for a criminal conviction, presumably either because there simply is insufficient evidence or because the U.S. is unwilling to declassify evidence for use at trial, are referred to a three-person review board, called the Afghan Review Board. Three boards are currently operational. There is a controversy among Afghan officials over whether detention without trial is even legal and whether it should be continuing past the handover. However, I’ll explain the system as currently provided for, a system which has numerous problems resulting from unclear detention criteria, confusing evidence standards, and issues with the right to effective counsel.
What Are the Criteria for Detention?
Article 4.1 of the previously mentioned Bagram Procedure establishes the general criteria each board member must consider. The criteria for eligibility for detention are:
(i) the detainee was a member of, or substantially supported an armed group engaged in hostilities against Afghanistan or international forces; or
(ii) the detainee committed or attempted to commit a belligerent act; or
(iii) the detainee substantially supported the commission or attempted commission of a belligerent act by another.
However, the criteria for detention have considerable ambiguity. Such terms as “member of,” “substantially support,” “belligerent act,” or “attempted commission of a belligerent act by another” all require interpretation. It is also unclear whether there is a consistent position taken by Afghanistan on “which specific groups qualify as security threats so as to render membership sufficient to meet the [detention] criteria.” Hence, given “the diversity of groups” and the “wide ranging opinions among Afghans regarding the actual threat posed by such groups … review board assessments may in practice be inconsistent and subject to a significant degree of arbitrariness.”
What Evidence Is Required for Detention?
The Board first uses a “preponderance of the evidence” standard to determine whether a detainee meets the criteria for detention, and if so, decides whether continued detention is needed. A “detainee’s potential for rehabilitation or reintegration” is a factor that this review board considers regarding the necessity for detention without trial. Since neither the MoU nor the Bagram Procedure mentions what sort of evidence is actually required to justify detention, there apparently are no official rules of evidence. The task of the Board members is plagued with uncertainty and unpredictability.
The Open Society Foundations report sheds more light on the evidence requirement. According to an interview with General Ghulam Farouq, an Afghan commander who appears to have firsthand knowledge of the MoU and the unpublished Presidential Decree, the Review Board may apply the Article 4.1 criteria by relying on information from “tribal elders or other influential community members from the detainee’s area,” from local governments or from other detainees, and on opinions “of highly educated and professional people” who sit with the detainees to “convince them to change their behavior.” If the board finds the evidence favors detention, the detainee is held without charge or immediate trial.
Yet guidelines for vetting this information from tribal elders, local governments, other detainees, or highly educated and professional people are not clarified. The question of who fits into the description of a “tribal elder” or “professional people” can lead to a multitude of answers. Whether the U.S. or Afghanistan retrieves and vets the information also isn’t known. Consequently, while broad outlines have been revealed, the crucial details of who does what, when, where, and how are not specified. So far both high-ranking U.S. and Afghan officials, speaking on the record, as well as the undisclosed sources used in the Open Society Foundations report, apparently have yet to elaborate on the evidentiary standards.
Safeguards against the use of torture are particularly important given the allegations of torture used in the past. The Afghan Constitution explicitly prohibits the use of torture. Article 29 states: “No one shall be allowed to or order torture, even for discovering the truth from another individual who is under investigation, arrest, detention or has been convicted to be punished.” Article 30 states: “A statement, confession or testimony obtained from an accused or of another individual by means of compulsion shall be invalid.”
Conversely, the Bagram Procedure lacks clear provisions, guidelines, or standard operating procedures that prohibit the use of information obtained through torture. Even though the Bagram Procedure is subject to the Afghan Constitution, the explicit prohibition would reinforce safeguards for detainees, especially since there have been allegations of torture in the past.
The Right to Effective Counsel for Detainees
The right to counsel for detainees held without trial, and the role of any counsel provided, are also ambiguous. Article 31 of the Afghan Constitution says: “Upon arrest, or to prove truth, every individual can appoint a defense attorney.”  The Bagram Procedure restricts that right and says that detainees held without trial are entitled to a “personal representative and if available, legal support.” However these “personal representatives” are not independent, civilian counsel, but appointed Afghan military lawyers. This “significant restriction” is warranted, so it is argued, because of the risk of exposure of classified information. Therefore, the Bagram Procedure may not necessarily contradict Article 31 of the Afghan Constitution. But, as we will see, there are many other concerns regarding these appointed military lawyers and their effective commitments to the detainees.
First, the Open Society Foundations report does not specify whether the scope of these appointed military lawyers includes gathering evidence and witnesses in favor of the detainee, though the detainees do have the right to present evidence and call witnesses on their behalf.
Second, the detainees themselves may not be able to review and rebut the key pieces of evidence that led to their initial capture or detention due to their classified nature, but their appointed Afghan military lawyer may. General Ghulam Farouq, who again may not be speaking in an official capacity, has somewhat clarified the role of these military lawyers. The reason for using appointed military lawyers is specifically because they will be able to “read that [classified information] and defend the detainees.” However, the Open Society Foundations report does not clarify how these military lawyers will be able to review and rebut classified information (if available) without the detainee’s first-hand knowledge.
Third, a conflict of interest potentially arises between the military lawyers’ duty to carry out effective representation and their position as officers within the Afghan army. While these military lawyers “take an oath that they will defend the detainees, not the government,” concerns about their competency and impartiality, and about the willingness of the detainees to trust their representatives in meaningful ways, raise more due process problems.
Track Three: What Happens to a Detainee Recommended for Release?
Last, if the Review Board decides the evidence against the detainee is not sufficient to warrant continued detention, and instead advises for release, there are still “two further, ill-defined review processes” that raise the same sorts of due process and criteria issues. First, the case is sent to yet another board, the Bagram Transfer Commission, “which is made up of five ministers, under the chairmanship of the Minister of Defence.” While no information has yet been released about this Commission’s procedures, it has no final authority. What process of review this Commission uses, what standard it applies, and how much deference is given to the Review Board’s decision are unknown.
If this Commission recommends release, the case goes before the final body, a joint U.S.-Afghan committee, the “U.S.-Afghan Bilateral Committee on Detentions,” which is chaired by the “Afghan defense minister and the commander of the American military in Afghanistan.” According to the MoU, if the U.S. commander disagrees with the recommended release, the U.S. recommendation should be “consider[ed] favorably.” Whether this language is actually a ‘veto’ or a ‘consensus’ is sharply disputed by U.S. and Afghanistan officials. Each side has interpreted such vague language favorably to its own interests in holding power.
According to the Afghan government, as of August 14, 2012, “the Joint Committee had reviewed the cases of 24 detainees recommended for release. Of the 24, 18 were approved for release and 6 detainees’ cases were referred to NDS for further investigation.” Whether the six non-approved cases were the result of the U.S. ‘veto’ is not known, and when, or if, this information will be disclosed, has yet to be revealed.
The transfer agreement within the MoU allows the Afghan government to detain these prisoners, even though the Afghan government is sharply divided over the legality of such detention. As of September, 2012, close to 3100 detainees had been transferred to Afghan custody. The lack of a clear, concise, transparent review process to decide whether these detainees will be subject to prosecution, release, or detention without trial is a major problem for an Afghan legal system that is still heavily dependent on U.S. help. This system adopted by the Afghan government “closely resembl[es] the U.S. system,” and it contains ambiguous criteria for detention without trial and confusing legal release procedures.
Due to the rapid 6-month deadline created by the MoU signing, combined with the confusion and division over whether the Afghan Constitution allows detentions without trial, it is possible that both sides rushed into an understanding, hoping to work out any perceived minor technicalities, when there may not have been an adequate recognition that minor technicalities would turn into enormous problems.
 Open Society Founds., Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power 19 (Sept. 6, 2012), http://www.soros.org/sites/default/files/BagramReportEnglish.pdf.
 Nathan Hodge, Kabul Court Discovers Forensics, Wall St. J. (Aug. 16, 2012), http://online.wsj.com/article/SB10000872396390443404004577581223881938152.html (available to subscribers).
 See id.
 David Ariosto, Karzai’s Choice for Afghan Intelligence Chief Suspected of Torture, Trafficking, CNN (Sept. 4, 2012), http://www.cnn.com/2012/09/04/world/asia/afghanistan-intelligence-chief/index.html.
 Hodge, supra note 2.
 On the legal infrastructure of the Afghanistan courts, see David Brown, The Legal Infrastructure—and Other Obstacles—Will Make It Difficult to Transition Detainees from U.S. Control to Afghan Control, Detained by U.S. (June 10, 2012).
 Human Rights First, Detained and Denied in Afghanistan: How to Make U.S. Detention Comply with the Law 4 (May 2011), http://www.humanrightsfirst.org/wp-content/uploads/pdf/Detained-Denied-in-Afghanistan.pdf.
 Open Society Founds., supra note 1, at 20.
 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. For an update about the significant numbers of detainees recently released by Afghanistan, see Mike Yang Zhang, Hundreds of Detainees Released Before President Karzai’s Visit to the U.S., Detained by U.S. (forthcoming).
 Kate Clark, Terms of Internment, Foreign Policy (Jun. 1, 2012), http://afpak.foreignpolicy.com/posts/2012/06/01/the_terms_of_internment.
 Open Society Founds., supra note 1, at 22.
 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. (Jan. 2, 2013), 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).
 Open Society Founds., supra note 1, at 16.
 Kate Clark presents the full text, in unofficial translation, of the Bagram Procedure. 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. To access this document, see this site.
 See Open Society Founds., supra note 1, at 22. (The report only mentions “member of” and “substantially support.”)
 Id. at 22-23.
 Id. at 22. Whether the “preponderance of evidence” standard is modeled after U.S. legal procedure is not confirmed. However, given that the Afghan court system within Bagram and the review boards were set up with extensive U.S. involvement, it is a strong possibility.
 The Open Society Foundations report never clarifies whether General Ghulam Farouq was speaking in an official capacity, or personally interpreting the unpublished Presidential Decree.
 Open Society Founds., supra note 1, at 23.
 Id. at 21.
 Clark, at any rate, does not report receiving any on-the-record details about these specific evidentiary issues. See Clark, supra note 13.
 Afghanistan Const. art. 29, available at http://www.embassyofafghanistan.org/sites/default/files/documents/constitution2004_english.pdf.
 Id. art. 30.
 Open Society Founds., supra note 1, at 29.
 Afghanistan Const. art. 31.
 Open Society Founds., supra note 1, at 23.
 See id.
 Id. at 24.
 Id. at 23.
 Id. (quoting General Ghulam Farouq).
 See Clark, supra note 23.
 Open Society Founds., supra note 1, at 25.
 Clark, supra note 23.
 Open Society Founds., supra note 1, at 25.
 Rod Nordland, Detainees Are Handed over to Afghans, But Not out of Americans’ Reach, N.Y. Times (May 30, 2012), http://www.nytimes.com/2012/05/31/world/asia/in-afghanistan-as-bagram-detainees-are-transferred-united-states-keeps-its-grip.html?pagewanted=all; 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, art. 3 ¶ 12, http://mfa.gov.af/en/news/7671.
 Id. art. 2, ¶ 9.
 See Clark, supra note 13.
 Open Society Founds., supra note 1, at 27.
 For an update regarding the numbers of detainees recently released by Afghanistan, see Mike Yang Zhang, Hundreds of Detainees Released Before President Karzai’s Visit to the U.S., Detained by U.S. (forthcoming).
 Rod Nordland, Issues Linger As Afghans Take Control of a Prison, N.Y. Times (Sept. 10, 2012), http://www.nytimes.com/2012/09/11/world/asia/parwan-prison-at-bagram-transferred-to-afghans-at-least-formally.html?src=recg.
 Open Society Founds., supra note 1, at 18.
 Id. at 3. Although there is no official documentation confirming that the Afghan model was deliberately modeled on the U.S. system.