Senior Associate, Human Rights First
Cross posted from The Huffington Post
On Thursday, the U.S. government asked a federal judge to order the return of a secret document about U.S. detention policy in Afghanistan that the government had mistakenly given to the ACLU in response to a Freedom of Information Act lawsuit.
Unfortunately, this is just the latest example of the government’s over-reliance on classification and secrecy in its conduct of national security policy. And while some secrecy is obviously necessary in the conduct of a war, in this case, the U.S. government’s extreme secrecy about its policies and processes used to detain thousands of Afghans without charge or trial at the U.S.-run Bagram Air Base is actually creating a threat to U.S. troops, not alleviating one.
There are now more than 2000 detainees being held at Bagram without charge or a minimum level of due process. The number of detainees has more than tripled since the end of the Bush administration.
The document that was accidentally released lays out how the United States decides who constitutes an “Enduring Security Threat” and cannot be released from the U.S. detention center without an extra layer of approval by high-level military commanders.
The government classified that document because, as Deputy Assistant Secretary of Defense William Lietzau claims in a declaration submitted in the ACLU’s lawsuit, disclosing this criteria would be “arming enemy forces” with secret information they can then use to get released from the Bagram prison. Lietzau has told me and my colleagues the same thing, in response to a report we released in May criticizing the secrecy of U.S. detention practices in Afghanistan and seeking more disclosure of detention criteria.
But it’s hard to believe that members of the Taliban and other insurgents in Afghanistan don’t already know what makes them look dangerous to the U.S. military. According to the ACLU, whose lawyers have seen the document, it contains nothing that would surprise anyone familiar with the Afghan conflict or harm U.S. troops or national security.
Human Rights First’s latest report on U.S. detention in Bagram is based on direct observations of the Detainee Review Board hearings that the U.S. government now provides to detainees every six months. While hearings sound like a good idea, in practice, these don’t provide even the minimum level of due process required by international law to detainees in Afghanistan – in large part because the outcome is based mostly on secret evidence that the detainee can’t see and therefore can’t contest. It’s hard to see how that meets any standard of fairness.
The U.S. claims it’s not violating any laws because it doesn’t have to follow international human rights law in Afghanistan – a position that many international law experts, the United Nations and European Court of Human Rights dispute. But there’s another important reason the U.S. should provide basic fairness to the thousands of Afghans it’s imprisoning there: the security of U.S. troops on the ground. Former detainees in Afghanistan over the winter told me and my colleagues that local Afghans increasingly see U.S. detentions as arbitrary and unfounded. Not surprisingly, that angers local Afghans and undermines their support for U.S. troops. This ultimately endangers U.S. troops and national security far more than would the de-classification of such basic information as the U.S. criteria for long-term indefinite detention.
The idea that disclosing this information is “arming enemy forces” sounds more like fear-mongering than sound policy grounded in the realities of the war Afghanistan. Insurgents surely know what makes them look suspicious to U.S. forces based on the thousands of people who have already been detained and released by U.S. authorities. But until the U.S. military is seen as dealing honestly and fairly with the Afghan people and imprisoning only those who are truly dangerous, it won’t win the support it needs for the U.S. effort there.
As even General David Petraeus has said, the U.S. “cannot kill or capture its way to victory” in Afghanistan, but must earn the trust of the Afghan people.
“The people are the center of gravity,” he said. “Only by providing them security and earning their trust and confidence can the Afghan government and ISAF prevail.”