5-10-2011By Daphne Eviatar
Senior Associate, Law and Security
The death of Osama bin Laden last week is prompting the Obama Administration, members of Congress and the American public to re-think the war in Afghanistan, and to wonder how the demise of the world’s most famous terrorist might hasten its end.
That’s as it should be. But for now, there are still 100,000 troops on the ground in Afghanistan, and some 1700 prisoners that the U.S. is detaining there indefinitely without charge or trial. That’s ten times the number of prisoners at Guantanamo Bay and almost triple the number imprisoned in Afghanistan when President Obama took office. As I wrote in a new report released today by Human Rights First, based on research in Afghanistan and observation of U.S. military practices there, the United States is not providing its prisoners there even the minimum level of due process required by international law. And that’s ultimately undermining the United States’ ability to put an end to the war there quickly and responsibly.
General David Petraeus has acknowledged that we “cannot kill or capture our way to victory” but must instead earn the trust of the Afghan people. Making sure we’re imprisoning the right people is critical to that effort.
Although the Obama administration has made some improvements, such as allowing detainees to attend part of a hearing and have a “personal representative,” the growing population of prisoners in Afghanistan is still held based on secret evidence and denied any legal assistance. The hearings I saw at the U.S.-run Bagram Air Base were better than nothing, but they’re hardly setting an example of justice. Detainees can be held for years based on classified evidence that comes from secret informants whose names they never learn and whose testimony they can never challenge. What’s more, the “personal representative” is not a lawyer, but a field-grade U.S. military officer with no legal training. These officers don’t speak the detainee’s language or know the detainee’s culture. Not surprisingly, most of the former detainees I interviewed in Afghanistan said they didn’t trust the “personal representative” they were assigned.
Those former detainees, some of whom can be seen and heard on this video, consistently described being imprisoned for months or years by U.S. forces, often without knowing why. Most said they were never shown any evidence that they’d done anything wrong or presented any sort of threat to U.S. forces. Many suspected that they’d been arrested based on false information provided to U.S. forces by someone from a rival tribe – a common problem in Afghanistan that leaked documents have revealed and even U.S. military commanders have acknowledged.
The situation isn’t hopeless, though. As I describe in the new report, there are concrete actions the U.S. can take to improve the situation, including providing detainees legal representation and making a real effort to declassify information before detainees’ hearings so they can respond to the charges in a meaningful way. Although the U.S. military so far has said that’s impractical, the fact is that other countries with big terrorism problems do provide meaningful review to prisoners. Israel, for example, provides lawyers, independent judicial review and appeals to all terror suspects it seizes — even when the numbers reach into the thousands.
As lawmakers and the Administration begin to think about how the U.S. leaves Afghanistan, they also need to remember that the only way to secure Afghanistan in the long run is to help it develop its own judicial system that can prosecute terrorists fairly and efficiently.
The United States needs to transition from waging war to supporting the conditions necessary for a sustainable peace.
That will require serious commitment and coordination among the many different NATO nations now providing “rule of law” support. And it could take a decade or more. But it’s a far less costly way to build Afghans’ confidence in their government and bolster security in Afghanistan and at home than maintaining 100,000 U.S. troops in the country — or detaining thousands of potentially innocent Afghans.
The death of the world’s most wanted terrorist is building up pressure on the United States government to end our country’s longest-running war. The question now is whether the American public and its leaders are willing to invest in a long-term strategy for peace.