When Are Afghan Detainees Captured After March 9, 2012 Being Transferred?
This two-part report will focus on Afghan detainees who have been captured and held in U.S. custody after the signing of the Memorandum of Understanding, and have yet to be transferred to Afghan control. Part I will provide some contextual information, as well as the various views of Afghan officials. Part II will focus on U.S. and allied positions, as well as a deeper dissection of the Memorandum of Understanding.
Part I – The MoU and the Afghan Point of View
Now that September 9th has come and gone, nearly all Afghan detainees that were in U.S. authority have been handed over to the control of the government of Afghanistan. The handover process was part of the Memorandum of Understanding (MoU) signed between the two governments. However, the U.S. and Afghan governments have a new issue to resolve: what happens to Afghan detainees who were captured by the U.S. after March 9, 2012, the date of the MoU’s signing?
Section 2, Article 6: The Participants affirm that, upon signing of this MoU, the Detention Facility in Parwan (DFIP) is to come under the management of an Afghan Commander …
(c) 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[.]
On September 9, 2012, six months after the MoU was signed, the U.S. and Afghanistan celebrated a transfer of over 3,000 detainees to Afghan custody. However, these were only detainees who were under U.S. custody before the signing of the MoU; as of September 10, 2012 684 detainees have been captured and kept in U.S. custody since the signing of the MoU, and remain in U.S. custody. We have found no information regarding whether this figure represents the total number of detainees captured after the MoU signing, or if there were any detainees captured after the signing of the MoU who have been transferred to Afghan custody. As for these 684 detainees, they remain in the DFIP, they remain on “the U.S. side of the DFIP,” and they have not been transferred into Afghan custody.
Now “there is lasting disagreement over how quickly detainees captured after March 9th should be screened and turned over to Afghan custody.” “Afghan officials argue that since the MoU was signed, ‘the time limit to hold detainee[s] is 72 hours.’” This “72 hours” figure quoted by Afghan officials seems to originate from Afghanistan’s Police Law. Specifically, Chapter 3, Section 15, under the title “Detention,” details situations in which the police may detain a person in custody. These situations include: when a police officer’s life is in danger or he or she is in danger of physical harm, when an individual cannot be identified without being detained, or when an individual threatens to commit suicide. However, the most intriguing provision is Chapter 3, Section 15 (4), which states: “In normal cases, the police may detain a person in custody if … provided for by the law in other cases. The period of detention can not be more than 72 hours.” This provision arguably opens a door for detention within the laws of Afghanistan, but it also limits the duration of detention. This 72-hour limit also appears in Chapter 4, Section 25, titled “Duration of Detention,” which states: “In order to comprehensive[ly] detect the crime and the criminal, the police can hold an arrested suspect in custody for a period of up to 72 hours.”
However, some Afghan officials claim the U.S. can only hold detainees for as long as it takes to transfer them to Afghan authorities. Perhaps implied in this claim is that the U.S. does not need to first transfer these detainees through temporary detention facilities and then on to the detention facility in the DFIP, but instead should transfer detainees to Afghan authorities in any facility whenever and wherever possible. This position creates difficulties between the two nations; it has been documented that U.S. rules have permitted holding detainees at temporary jails for up to nine weeks. Depending on where these temporary jails are located and exactly how long these detainees remain in temporary jails, it may take longer than three days to process a detainee and transfer him to the DFIP. More importantly, these nine weeks give the U.S. the time to screen and interrogate detainees in order to obtain “good, tactical intel,” among other things. Further complicating matters, Aimal Faizi, a spokesman for President Karzai, speaking in regard to new prisoners, stated “it w[ould] be illegal after [September 10th] for the U.S. to detain Afghans.” As we will see in Part II, these Afghan positions on detainees captured after the signing of the MoU clearly differ from those of U.S. officials, and conflict with alternative views on interpreting the MoU.
 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, US-Afg., Mar. 9, 2012 [hereinafter “MoU”], http://mfa.gov.af/en/news/7671.
 David Dayen, U.S. Hands Over Bagram Prison to Afghans – Sort Of, Firedoglake (Sept. 9, 2012, 1:04 P.M.), http://news.firedoglake.com/2012/09/10/us-hands-over-bagram-prison-to-afghans-sort-of/
 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
 Kate Clark, [‘]The Other Guantanamo’: Bagram and the Struggle for Sovereignty, Afghanistan Analysts Network (Sept. 10, 2012), http://aan-afghanistan.com/index.asp?id=2980.
 Open Society Founds., Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power 9(Sept. 6, 2012), http://www.soros.org/sites/default/files/BagramReportEnglish.pdf.
 Islamic Republic of Afghanistan, Police Law, http://www.rolafghanistan.esteri.it/NR/rdonlyres/94667686-6B09-4E6E-9972-905E21EEC1E4/0/PoliceLaw.pdf (last accessed Nov. 14, 2012).
 Kimberly Dozier, Afghanistan Secret Prisons Confirmed By U.S., Huffington Post (Apr. 8, 2011, 12:43 P.M.), http://www.huffingtonpost.com/2011/04/08/afghanistan-secret-prison_n_846545.html.
 Kate Clark, The Other Guantanamo: Bagram and the Struggle for Sovereignty, Afghanistan Analysts Network (Sept. 10, 2012), http://aan-afghanistan.com/index.asp?id=2980.