U.S. Refuses to Transfer Some Detainees in Handover to Afghanistan
The U.S. Demands That the Afghan Government Establish a Regime of Administrative Detention
The September 9, 2012 transfer of the Detention Facility in Parwan (DFIP) from U.S. to Afghan control was marked by controversy. In part one, this post will consider American insistence that Afghanistan implement a regime of administrative detention to alleviate the danger of the potential release of high value detainees. Part two will address Afghanistan’s longstanding resistance to establishing a system of detention without trial.
The U.S. and Afghanistan agreed to transfer the DFIP six months earlier in the Memorandum of Understanding (MoU). According to the MoU, all Afghan detainees captured before the signing of the agreement on March 9, 2012 were to be transferred to Afghan authority within six months. However, by that deadline about thirty detainees from those individuals captured before March were “not handed over because of a dispute over whether the Afghans would continue to hold them without trial, as the United States had demanded and as stipulated under the detention deal.” A spokesperson for the American-led coalition in Afghanistan, Jamie Graybeal, emphasized that 99% of the prisoners captured before the signing of the MoU have already been handed over to Afghan control, but added, “we have paused the transfer of the remaining detainees until our concerns are met.”
Although the U.S. military has not elaborated on the nature of these concerns, they center on the issue of whether persons considered “high value” detainees will be held without trial once under Afghan control. Little information is available on what goes into designating a detainee as “high value,” and deciding to detain that person without trial. One important consideration, however, in determining that a “high value” detainee should be placed in administrative detention—detention without trial—is the lack of admissible evidence against him. Often such evidence is classified information.
Current and past U.S. administrations have justified detention without trial on the basis of classified information and the danger of sharing such material in court. Classified information may come in the form of intelligence reports gathered by the military or intelligence agencies, or foreign government communications. Like their U.S. counterparts, Afghan courts cannot assess such evidence without access to the original sources for the reports. However, Afghan administrative “review boards can consider classified intelligence that is inadmissible in Afghan courts.” While proponents of limited or no judicial review for detainees point to classified information as a reason for the use of review boards and their advantage over courts, others argue that the D.C. Circuit’s handling of Guantanamo detainee cases proves that classified information can be protected during the judicial process. Nonetheless, review boards have become an integral part of the regime of administrative detention, a system the U.S. has relied on for persons “deemed too difficult to prosecute and too dangerous to release.”
When the Afghan government signed the MoU, it agreed to implement a regime of administrative detention. Under article 5 of the agreement, Afghanistan committed to the establishment of “an administrative detention regime under its domestic law,” in compliance with international humanitarian obligations. In article 10 both sides agreed to cooperate “in further developing Afghanistan’s capacity to ensure secure and humane administrative detention operations.” Article 11 provided that the transferred detainees are either “to be held in administrative detention consistent with Additional Protocol II,” or prosecuted “at the Justice Center in Parwan consistent with the criminal laws of Afghanistan.” The exact phrase “administrative detention” appears five times throughout the seventeen articles of the agreement. Moreover, in the same month as the signing of the MoU, the Afghan Ministers of Defense, Interior, and Justice, joined by the Attorney General, the Chief Justice of the Supreme Court, and the director of the National Directorate of Security signed an executive agreement creating the regime of administrative detention. Afghanistan finally appeared to commit to the creation of a system of detention without trial.
Afghanistan Renews Objections to Administrative Detention
In September, the U.S. refused to handover approximately thirty Afghan detainees at the DFIP when the facility and most of the prisoners were officially transferred to Afghanistan. The reasons behind this decision, as addressed in Part I of the post, had to do with U.S. concerns that Afghanistan would falter in its commitment to establish a regime of detention without trial. Part II considers crucial, and perhaps increasing, differences in perspective on the issue of administrative detention between the Afghan and U.S. governments.
Six months earlier, Afghanistan agreed to implement a system of administrative detention; however, Afghans have voiced their misgivings over such a regime before. The government’s objections to establishing detention without trial have previously posed an obstacle to the transfer of detainees from U.S. to Afghan control. In 2005-06, U.S. officials drafted a law that would permit Afghanistan to implement administrative detention and begin to assume control of the growing population of the DFIP. President Karzai, upon advice from aides resistant to the creation of such a regime, rejected the draft. In 2010, and again in the following year, U.S. officials pointed to Afghanistan’s “undeveloped legal system” as a reason for the delay in transfer of the DFIP, and proposed the adoption of detention without trial for insurgents held on the basis of classified information. Analysts at the Open Society Foundation have viewed this history as evidence that Afghanistan’s leaders finally caved to U.S. pressure and agreed in the MoU to implement the internment regime.
Despite the stated provisions of the MoU, Afghan concerns over administrative detention reemerged shortly before the September 9th transfer, when President Karzai met with General John Allen, commander of the U.S. and NATO forces. The meeting, reported as a clash, came after renewed Afghan objections to administrative detention. The U.S. criticized Afghanistan for wavering in its commitment to the MoU and halted the transfer of the approximately thirty Afghan detainees. Following the meeting, Mr. Karzai’s office indicated that the parties had not come to an agreement; a released statement said: “any delay in the handover is considered a breach of Afghan national sovereignty.” Less than two weeks after the tense meeting between President Karzai and General Allen, a judicial panel convened at the request of the president announced that administrative detention violates the Afghan constitution. The panel stated that because administrative detention “had not been foreseen in Afghan laws,” it could not be implemented.
The growing acrimony on the issue of administrative detention was perhaps quelled by a video-teleconference between President Karzai and President Obama. Allaying U.S. fears that terrorism suspects might be released under Afghan control, Karzai promised to oversee the creation of a legal framework setting up administrative detention, although no provision in the Afghan constitution specifically permits such a regime.  A day after the agreement reached between the two heads of state, human rights attorneys representing some of the detainees in the DFIP congratulated President Karzai for rejecting detention without judicial review. In the oscillating relationship between the U.S. and Afghanistan, only time will tell whether the attorneys’ praise was justified.
It may be that the dispute between the U.S. and Afghanistan is not just over administrative detention, but also actually about the two sides’ fundamentally disparate understandings of the MoU. According to Section 2, Article 6 (c) of the MoU, “the United States Commander at the DFIP is to retain responsibility for the detainees held by the United States at the DFIP under the Law of Armed Conflict during the processing and transfer period, which is not to last more than six months.” The provision does not specify when this period commences. As a result, it is unclear whether the six-month period begins at the time a detainee is captured, or on the date the MoU went into effect, March 9, 2012. Some analysts have argued that the wording of Art. 6 (c) shows the intention of the U.S. to set up a “conveyor belt detention system—where they would continue to arrest Afghans, investigate them and detain those they deemed suspect without trial.” This is in stark contrast to Afghan expectations that the U.S. will transfer any detainees within seventy-two hours.
Official statements from both sides have illustrated this difference in understanding. While Karzai’s spokesperson, Aimal Faizi, stated that after the September transfer “it will be illegal for the U.S. to detain Afghans,” Colonel Thomas Collins, spokesperson for the U.S. forces, explained: “the U.S. does not intend to conduct long term detention operations; however, the U.S. retains the authority to capture and hold detainees.” To prevent further misunderstanding over the time period of detention—clarifying that all future Afghan detainees come under Afghan control from the time they are captured—Faizi stated: “there must be no unilateral operations”; instead, all search-and-capture operations should be jointly carried out. The two recent U.S. suspensions of joint military operations with Afghan forces, a response to the rise of insider attacks,  have additionally complicated the question of what authority the U.S. retains in detaining Afghans. Although, joint operations have resumed, the possibility of further difficulties in cooperation due to the increase of insider attacks remains.
Afghanistan’s longstanding objections to a system of administrative detention, both sides’ discordant views on the provisions of the MoU, as well as the widening gulf in cooperation between the two governments, combine to create the currently incomplete transition of the DFIP. Despite Karzai’s assurances that the Afghan judiciary will draft the legal framework establishing administrative detention, it is uncertain when such a law will be introduced. Moreover, even now no date has been set for the handover of the approximately thirty Afghan detainees the U.S. refused to transfer in September.
 Memorandum of Understanding Between the Islamic Republic of Afghanistan and the United States of America on the Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, Mar. 9, 2012, available at http://mfa.gov.af/en/news/7671 [hereinafter “MoU”].
 This update addresses only the issues concerning detainees who are Afghan nationals captured before the March transfer agreement. For information on non-Afghan detainees or those captured after March, see forthcoming posts by Michael Villacres and Byron Zinonos (respectively).
 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?_r=1.
 Graham Bowley, U.S. Puts Transfer of Detainees to Afghans on Hold, N.Y. Times (Sept. 9, 2012), http://www.nytimes.com/2012/09/10/world/asia/us-puts-afghan-transfers-at-parwan-prison-on-hold.html.
 Richard Leiby, U.S. Transfers Control of Bagram Prison to Afghan Officials, Wash. Post (Sept. 10, 2012), http://www.washingtonpost.com/world/us-transfers-prison-control-to-afghan-officials/2012/09/10/7edf7496-fb17-11e1-875c-4c21cd68f653_story.html.
 Open Society Founds., Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power (Sep. 6, 2012), http://www.soros.org/sites/default/files/BagramReportEnglish.pdf., at 4.
 See Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, Army Law., June 2010, at 9, 39.
 See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc), cert. denied (2011) (affirming the government’s assertion that plaintiffs’ claims concerning extraordinary rendition could not be heard because of the close connection between the allegations and classified information); see also El-Masri v. United States 479 F.3d 296 (4th Cir. 2007) (holding that under the state secret doctrine the government may prevent disclosure of classified information in a judicial proceeding).
 John B. Bellinger & Vijay M. Padmanabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions & Other Existing Law, 105 Am. J. Int’l L. 201, 226 (2011).
 Open Society Founds., supra note 6, at 17.
 Bellinger & Padmanabhan, supra note 9, at 226.
 Bowley, supra note 4.
 MoU, supra note 1, § 2, art. 5.
 Id., § 2, art. 10.
 Id., § 3, art. 11.
 Open Society Founds., supra note 6, at 12. On the subject of the administrative detention regime created by Afghanistan, see forthcoming post by Mike Yang Zhang.
 Tim Golden, Foiling U.S. Plan, Prison Expands in Afghanistan, N.Y. Times (Jan. 7, 2008), http://www.nytimes.com/2008/01/07/world/asia/07bagram.html?pagewanted=all.
 Kevin Sieff, Afghan Prison Transfer Delayed, Wash. Post (Aug. 12, 2011), http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/gIQApCGMBJ_story_1.html.
 Heidi Vogt, Afghans Rejects US-Favored Administrative Detention, Wash. Post (Sept. 17, 2012), http://www.washingtontimes.com/news/2012/sep/17/afghans-reject-us-favored-administrative-detention/.
 Alisa J. Rubin & Douglas Schorzman, Progress Seen in Resolving U.S.-Afghan Dispute Over Detainees, N.Y. Times (Sept. 20, 2012), http://www.nytimes.com/2012/09/21/world/asia/obama-and-karzai-discuss-detention-of-terrorism-suspects-in-afghanistan.html?pagewanted=all.
 On the issue of whether administrative detention is constitutional under the Afghan Constitution, see forthcomingpost byHeather Hicks.
 Attorneys for Prisoners Meet with Afghan Government on Bagram Prison Transfer, Int’l Justice Network (Sept. 21, 2012), http://ijnetwork.org/bagram-newsroom-52/275-attorneys-for-prisoners-meet-with-afghan-government-on-bagram-prison-transfer.
 MoU, supra note 1, § 2, art. 6 (c).
 Clark, supra note 30.
 Chris McGreal, U.S. Suspends Joint Military Operations with Afghanistan After Attacks, Guardian (Sept. 17, 2012), http://www.guardian.co.uk/world/2012/sep/18/us-afghan-military-operations-suspended.
 Jennifer Rowland, Suicide Bomber Kills 14 in Eastern Afghanistan, AfPak Channel (Oct. 1, 2012), http://afpak.foreignpolicy.com/posts/2012/10/01/suicide_bomber_kills_14_in_eastern_afghanistan.
 Rubin & Schorzman, supra note 27.
Update: Karzai Orders the Takeover of Bagram Prison
Recently tensions have increased between Afghanistan and the United States over the incomplete handover of detainees at the Detention Facility in Parwan (DFIP) from U.S. to Afghan control. On November 18, 2012, President Karzai released a statement indicating that he has instructed his top security officials “to take all required actions for full Afghanization of Bagram prison affairs and its complete transfer of authority to Afghans.” President Karzai stated that Americans were in “serious breach” of the provisions of the Memorandum of Understanding (MoU) signed in March 2012 setting forth the prison transfer. Furthermore, Afghan officials pointed to the expiration of the two-month grace period for the handover of the remaining detainees the U.S. refused to transfer in September.
The two-month extension period, agreed to by President Obama in a videoconference with Karzai in September, was to be used to finalize the transfer of the detainees and the operations of the DFIP to the Afghan authorities. Afghan officials argue that not only has the transfer not taken place, but continuing U.S. special forces operations resulting in more than 100 arrests per month have increased the detainee population in U.S. custody. Additionally, Pres. Karzai’s spokesperson Aimal Faizi indicated that 57 Bagram detainees ordered released by Afghan courts months ago remain interned by the U.S. authorities. He stated: “We expect the Americans to respect the agreement according to the Memorandum of Understanding.”
The response of the U.S. authorities to Karzai’s aggressive stance has been subdued and partial. Although the United States Forces-Afghanistan released a statement expressing respect for the sovereignty of Afghanistan, it did not address complaints that U.S. forces hold detainees in defiance of release orders. On the MoU, U.S. officials have stated that “the agreement left open to further negotiation how to handle new battlefield detainees.” However, those negotiations taking place in the last two months have now reached an impasse, as Karzai’s statement seems to indicate.
The current disagreement jeopardizes another set of negotiations recently begun between the U.S. and Afghanistan. On November 15, 2012, talks commenced over the bilateral security agreement which is to define the terms for the U.S. military presence in Afghanistan after 2014 and address questions such as whether the U.S. military will have immunity from prosecution in Afghan courts. The timing of Karzai’s statement has raised suspicion that its intended purpose is to pressure the U.S. into making concessions during the negotiations of the bilateral security agreement. He opposes granting U.S. forces immunity from Afghan prosecution for the killing of Afghan citizens. Some analysts argue Karzai—confident that the U.S. needs to remain in Afghanistan for its own security interests—is taking a challenging stand in order to “garner domestic support and show he is not solely beholden to foreign powers.”
Whether Karzai’s recent order to take over the DFIP from U.S. control is motivated by strategic politicking or whether, in the words of human rights attorney Tina Foster, the Afghans are tired of “being treated like servants in their own country,” his statement undoubtedly further complicates the already difficult relationship between the U.S. and Afghanistan.
 Jennifer Rowland, Karzai Orders Takeover of Bagram Prison, AfPak Channel (Nov. 19, 2012),
 Pamela Constable, Karzai Orders “Full Afghanization” of U.S.-Run Bagram Prison, Wash. Post (Nov. 19, 2012), http://www.washingtonpost.com/world/karzai-orders-full-afghanization-of-us-run-bagram-prison/2012/11/19/39da5080-326e-11e2-92f0-496af208bf23_story.html.
 Rod Nordland, Karzai Orders Afghan Forces to Take Control of American-Built Prison, N.Y. Times (Nov. 19, 2012), http://www.nytimes.com/2012/11/20/world/asia/karzai-orders-takeover-of-afghan-prison.html.
 Rowland, supra note 1.
 Nordland, supra note 4.
 Michael Gordon, U.S. in Talks with Afghans on Presence After 2014, N.Y. Times (Nov. 15, 2012), http://www.nytimes.com/2012/11/16/world/asia/us-in-talks-with-afghans-on-presence-after-2014.html.
 Constable, supra note 2.
 John Wendle, Karzai Orders Takeover of Air Base After “Serious Breach” of U.S. Pact, Independent (Nov. 20, 2012), http://www.independent.co.uk/news/world/asia/karzai-orders-takeover-of-air-base-after-serious-breach-of-us-pact-8336154.html.
 Nordland, supra note 3.