Part II- The U.S. Point of View and Multiple Interpretations of the MoU
In Part I, I discussed the signing of the MoU and the response of Afghan officials to the issue of detainees captured after March 9, 2012. Now, let us turn to the position of U.S. and allied officials. The fact is that the U.S. continues to “process a steady stream of prisoners caught in night raids,” and the U.S. and NATO disagree with Afghanistan’s interpretation of what to do with these detainees. NATO says that the 684 prisoners captured after the MoU was signed are to remain in U.S. custody for now. U.S. officials have stated that “the United States intends to process these detainees under the same process established by the Detentions MoU.” Before the September 9th deadline, a top detainee policy official from the Pentagon stated that compliance in regards to the MoU refers to the transfer of all Afghan citizens who were already in custody when the MoU was signed.
Additionally, the U.S. State Department claims “it is [their] intention that any Afghan nationals detained on or after March 9, 2012 will go through the same transfer [process] that [was] established [under the MoU].” Whereas spokesman Faizi claimed that it would be illegal after September 10th for the U.S. to detain Afghans, Colonel Thomas Collins, a spokesperson from the U.S. Forces Afghanistan, said the following:
[C]onsistent with the Detentions MoU and the … Special Ops MoU, … the U.S. retains the authority to capture and hold detainees who have been captured in accordance with the Law of Armed Conflict.… In short, any Afghan nationals detained at the Detention Facility in Parwan on or after March 9, 2012 will go into the same transfer processes established for pre-March 9, 2012 detainees, and will be steadily transferred to [the government of Afghanistan].
Furthermore, there has been disagreement as to what Section 2, Article 6(c) of the MoU actually means. Upon first reading the MoU, some understood this section to mean that Afghanistan would gain control of all of the DFIP’s detainees and its detention facilities by September 9, 2012. However, after the September 9th ceremony, one reporter wrote:
I suspect the U.S. military was setting up a sort of conveyor belt detention system — where they would continue to arrest Afghans, investigate them and detain those they deemed suspect without trial. For each detainee picked up in the future, there would be a six month period within which the U.S. military would transfer them to Afghan control.
To understand what the MoU requires, it is important to read Section 2, Article 6(c) of the MoU in conjunction with the next two provisions, Section 2, Articles 6(d) and 6(e). Here is the text of all three:
Section 2, Article 6: The Participants affirm that, upon signing of this MoU, the DFIP (Detention Facility in Parwan) 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;
(d) both sides commit to provide the necessary resources and personnel sufficient to effect the transfers of detainees held by the United States at the DFIP under the Law of Armed Conflict within the six-month timeframe; and
Reading these sections, it is possible to conclude that the U.S. may indeed delay any transfer of any detainees newly captured after the signing of the MoU by six months from the date of their capture. Section 2, Article 6(c) lays out the terms of the transfer agreement, specifically that detainees held by the U.S. are to be processed and transferred over, and that this transfer period is not to last longer than six months. This section does not specify whether or not the six months is a hard deadline from the day of signing the MoU, or whether the clock for each detainee begins whenever he is captured after the MoU was signed. If the latter explanation is the true interpretation of Section 2, Article 6(c), then a detainee captured on May 10, 2012, for example, need not be transferred to Afghan control until November 10, 2012.
Do Section 2, Articles 6(d) and 6(e) clarify matters on the six-month timeframe? Section 2, Article 6(d) perhaps calls for all transfers to be made within six months from the signing, but perhaps it only refers to an open-ended six month period, as Section 2, Article 6(c) may. In addition, it is arguable that this provision only mandates the resources and personnel necessary to accomplish the detainee transfers; the phrase “within the six-month timeframe” may not operate here as an actual deadline on the transfers themselves.
Moreover, if the U.S. deems that Afghanistan is not making progress in the technical and logistical aspects of running the DFIP properly, it is conceivable – though strained – that, by invoking Section 2, Article 6(e), the U.S. can maintain custody of those 684 detainees captured after the signing of the MoU. Perhaps this approach would be implemented simply to lessen the load of the Afghan government in processing and dealing with the detainees already transferred. On its face, Section 2, Article 6(e) sets a one-year limit on any such step. However, this provision might not mean that the U.S. could only detain prisoners for that one-year period. While this section says that the U.S. is only to stay at the DFIP for that one-year period, it does not say that the U.S. cannot detain individuals outside of the DFIP.
Finally, the provision for the U.S. to extend its support until March 9, 2013, as provided in Section 2, Article 6(e), arguably supports reading Section 2, Article 6(c) to leave the door open for these 684 detainees to remain in U.S. custody after the handover date. Article 6(e), significantly, does specify an ending date of one year from the signing of the MoU. Therefore, since Article 6(c) and 6(d) do not specify a date from which the six-month period begins, it may be implied that the six-month timeframe mentioned in each provision begins not from the signing of the MoU, but from a detainee’s capture date.
Although there is no specific provision in the MoU regarding the transfer of prisoners captured after the signing on March 9th, there is a section in the document that may shed some light on this issue. Section 3, Article 11 states the following:
The Participants intend to continue to transfer detainees, captured during military operations, to Afghanistan to be held in administrative detention consistent with Additional Protocol II, or for prosecution at the Justice Center in Parwan (JCIP) consistent with the criminal laws of Afghanistan. The Participants intend to address this matter further in a separate document.
This section of the MoU may imply that there are no guidelines or procedures regarding detainee transfers for those captured after the signing of the MoU on March 9, 2012. Under this interpretation, in order to create the appropriate guidelines for the transfer of prisoners captured after March 9th, an entirely new MoU between the U.S. and Afghan governments might be required.
There is an ongoing dispute as to whether administrative detention is violating Afghan law, but in October 2012 it seemed that a conversation between President Obama and President Karzai had brought discussions about how to resolve this issue back on track. Unfortunately, as of the writing of this article, there have yet to be any further reports regarding the ultimate fate of these 684 detainees.
On November 17th, 2012 President Hamid Karzai conducted a meeting with judicial and law enforcement officials to discuss the implementation of the MoU. “This meeting was held, according to a statement issued by Karzai’s office, after the completion of [a] two-month timeline that President Karzai had agreed with at the proposal of [President Obama] for the full transfer of [Bagram] prison.” President Karzai’s spokesperson, Aimal Faizi, “also said that Karzai had agreed in a video conference call with President Obama earlier [in the fall of 2012] to give the Americans two months to figure out an alternative to detention without trial,” otherwise known as administrative detention. Afghanistan’s Attorney General and the Military Police Commander reported in this meeting that “prisoners who were presumed innocent by [Afghan courts] are still being [detained],” and that American forces continue to detain individuals. President Karzai’s spokesperson, Aimal Faizi, stated that administrative detention, or detention without trial, is “against Afghan law.” In a statement, President Karzai “called the failure to hand over all the detainees ‘a serious breach of the Memorandum of Understanding,’” and “ordered his defense minister, attorney general and prison administrator ‘to take required and urgent measures’ to ensure the complete transfer of authority.” Regarding individuals captured after the signing of the MoU, an unnamed rule of law consultant working in Afghanistan said:
The MoU was supposed to transfer the detainees that were already held by the Americans into the Afghan system .… [E]veryone [captured] after that agreement was in limbo. And the Americans were just taking them in because they hadn’t come up with any sort of mechanism on how to deal with that.
Further complicating matters, on December 3, 2012, President Karzai’s office announced that he had recently sent a letter to President Obama, stating “the people of Afghanistan consider detention and prisons run by foreigners on their soil a breach of their national sovereignty. So, if the Afghan nation sees their national sovereignty violated, they won’t allow their government to enter into the proposed security agreement with the U.S.” This warning may be further indication that this issue will not be resolved any time soon.
 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
 Karzai Slams U.S. For Failing To Transfer of Bagram Inmates To Afghanistan, PressTV (Sept. 16, 2012, 5:14 P.M.), http://www.presstv.com/detail/2012/09/16/261957/karzai-slams-us-over-bagram-transfer/
 Open Society Founds., Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power 11(Sept. 6, 2012), http://www.soros.org/sites/default/files/BagramReportEnglish.pdf.
 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?pagewanted=all.
 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.
 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.
 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”] at § 2, art. 6(c)-(e), http://mfa.gov.af/en/news/7671.
 Heidi Vogt, Afghans Reject U.S.-Favored Administrative Detention, AP/The Big Story (Sept. 17, 2012, 4:19 P.M.), http://bigstory.ap.org/article/afghan-judicial-panel-rules-us-favored-administrative-detention-against-afghan-law; see Heather Hicks,Does Afghan Law Permit Detention Without Trial?, Detained By U.S. (forthcoming).
 Alissa J. Rubin & Habib Zahori, Karzai Accuses U.S. of Duplicity in Fighting Afghan Enemies, N.Y. Times (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/world/asia/karzai-accuses-us-of-duplicity-in-fighting-afghan-enemies.html; see Astrid Avedissian, U.S. Refuses to Transfer Some Detainees in Handover to Afghanistan, Detained By U.S. (Oct. 22, 2012), http://www.detainedbyus.org/u-s-refuses-to-transfer-some-detainees-in-handover-to-afghanistan/.
 President Karzai: Take Every Required and Urgent Action for the Full Afghanization of Bagram Prison Affairs and Its Complete Transfer of Authority, Office of the President, Islamic Republic of Afghanistan (Nov. 18, 2012) [hereinafter “Karzai Statement on Bagram”], http://president.gov.af/en/news/14798.
 Rahim Faiez, Hamid Karzai, Afghanistan President, Accuses U.S. Forces of Violating Detainee Pact, Huffington Post (Nov. 11, 2012), http://www.huffingtonpost.com/2012/11/19/hamid-karzai-afghanistan-detainee-pact-accusations_n_2156904.html.
 Chelsea J. Carter & Barbara Starr, Karzai: U.S. Refusal to Hand Over Afghan Detainees A ‘Serious Breach’ of Agreement, CNN (Nov. 19, 2012), http://www.cnn.com/2012/11/19/world/asia/afghanistan-bagram-prison-transfer/index.html.
 John Wendle, Karzai Orders Takeover of Air Base After ‘Serious Breach’ of US Pact, The 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.
 Afghan National Security Council: In Afghanistan, No Other Country Has the Right to Run Prisons and Detain Afghan Nationals, Office of the President, Islamic Republic of Afghanistan (Dec. 3, 2012), http://president.gov.af/en/news/15236.