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Handoff of Detention Facility in Parwan Marred: Afghan Government Places Higher Value on Rule of Law Than US

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Following on the heels of the initial agreement that was virtually meaningless from the start, because the US still retained veto power of many of Afghanistan’s moves, the US today allowed Afghanistan to hold a “splendid” ceremony marking the “complete” handoff of prison control to Afghanistan. As might be expected, the handoff is not complete, and the US is still insisting it retains many powers the Afghans dispute.

Khaama provides a summary of the ceremony:

U.S. officials handed over formal control of Afghanistan’s only large-scale U.S.-run prison to Kabul on Monday, even as disagreements between the two countries over the Taliban and terror suspects held there marred the transfer.

Control of the jail has been hailed by Kabul as a victory for sovereignty, but analysts said it was largely a symbolic measure, as Nato prepares to leave Afghanistan after more than a decade fighting an insurgency.

/snip/

“I’m happy that today we are witnessing a glorious ceremony that marks the handing over of responsibilities of Afghan prisoners to Afghans themselves,” acting defence minister Enayatullah Nazari said.

Multiple reports point to the establisment of an Afghan system for prolonged detention of prisoners without charges as the primary area of disagreement. The New York Times provides the transcription of the US government’s position on the dispute:

The coalition would not say what its concerns were, but some Afghan officials have raised objections to the system of no-trial detention that the United States insisted the Afghan government embrace at Parwan. This system allows the continued imprisonment of wartime prisoners deemed too difficult to prosecute but too dangerous to release.

The Times provides no basis for how we are to understand that these detainees are both “too difficult to prosecute” and “too dangerous to release”. How are we to understand the danger these prisoners pose if the evidence against them is not tested in a court?

The Washington Post dances around the edges of this issue, suggesting that the US position is governed by classified evidence, but that this practice has drawn “international criticism”:

 The United States has held suspected militants for years on the basis of classified, undisclosed evidence, drawing international criticism.

Writing in Foreign Policy, Chris Rogers summarizes the situation in more detail, drawing on a report from Open Society Foundations (funded by George Soros), for which he is an attorney:

This partial handover has come at a high cost for Afghanistan: the creation of a new internment regime that will allow the Afghan authorities to detain without trial. A number of Afghan officials have called this new regime unconstitutional and fear it will be subject to abuse.

The creation of an Afghan internment regime appears to have been introduced largely at the behest of the United States, in order to facilitate the handover of U.S. held detainees, and satisfy the U.S. desire for a lasting internment system on the Afghan side into which it could continue to transfer future captures. Read more →

DC Circuit, Want to Rethink that Habeas Ruling?

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Back in May, the DC Circuit decided that detainees at Bagram Air Force base were not entitled to habeas corpus because, since the base is in an active war zone, it would be unduly burdensome for the government to hold a real hearing.

I’m wondering if the DC Circuit would like to rethink that decision?

After all, in July, the Afghans proved themselves capable of holding a trial in the very same base in which Americans claim to be helpless to do the same, relying on assistance from US military lawyers who claim to be unable to hold their own meaningful hearings.

The chief judge asked God’s forgiveness if he had reached the wrong decision, and then he sentenced four members of an Afghan family charged with making bombs: two brothers to 10 years in prison and two other family members to time already served.

The courtroom, deep inside the American-run detention center in Parwan, erupted. The prosecutors complained that the sentences were too light, and the defense lawyers protested that they were too heavy; one of the defendants, Masri Gul, said he had not been allowed to examine the evidence; and the guards tried to quiet everyone.

[snip]

The American military made a great effort to showcase the bomb-making trial as a symbol of the transfer of authority, inviting Afghan and Western news media. However, the judges’ verdict seemed to depend in large part on crucial forensic work primarily from American technicians, and over all, Americans will continue to play a substantial role in decisions about the transfer of detainees. So far, Afghan and American officials have identified 110 cases for Afghan trials.

If a bunch of US military lawyers are already actively involved in hearings in Afghanistan (ones they’re proud enough to turn into a press spectacle), and if Afghans can pull a trial off, then doesn’t it follow the American military can muster some kind of real review of detainees?

Add in the fact that–as Spencer describes it–this base is looking more and more like an American exurb, down to the traffic jams and the road named Disney.

More notable than the overstuffed runways is the over-driven road. Disney Drive, the main thoroughfare that rings the eight-square-mile base, used to feature pedestrians with reflective sashes over their PT uniforms carrying Styrofoam boxes of leftovers out of the mess halls. And those guys are still there.

But now the western part of Disney is a two-lane parking lot of Humvees, flamboyant cargo big-rigs from Pakistan known as jingle trucks, yellow DHL shipping vans, contractor vehicles and mud-caked flatbeds. If the Navy could figure out a way to bring a littoral-combat ship to a landlocked country, it would idle on Disney.

Expect to wait an eternity if you want to pull out onto the road. Cross the street at your own risk.

Then there are all the new facilities. West Disney has a fresh coat of cement –- something that’s easy to come by, now that the Turkish firm Yukcel manufactures cement right inside Bagram’s walls.

There on the flightline: the skeletons of new hangars. New towers with particleboard for terraces. A skyline of cranes. The omnipresent plastic banner on a girder-and-cement seedling advertising a new project built by cut-rate labor paid by Inglett and Stubbs International.

If we’re going to build infrastructure for a permanent empire in Afghanistan, then we ought to build in all the things empires bring, like real judicial systems.

Seriously. With all this building and trialing and whatnot, the DC Circuit now looks like a collection of chumps buying a transparent government lie about the ability to hold hearings. Isn’t it time to rethink habeas in Afghanistan?