New Bagram Rules Represent an Improvement, Additional Reforms Needed to Ensure Compliance with International Standards

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Washington, DC – As it notes an improvement in detainee review procedures for the 600 detainees currently held by the United States at its facility in Bagram, Afghanistan, Human Rights First urges the United States to view today’s policy shift as a stepping stone to additional reforms to bring U.S. detention operations in compliance with its international legal obligations and to advance American counterinsurgency goals.

According to the new Detainee Review Board (DRB) procedures made public on September 14 as part of habeas litigation in U.S. courts, detainees will be appointed a personal representative, but not an attorney, who can assist in their appeal for release. Detainees will not have access to all the evidence and information that led to their detention, but the personal representative will have access to all evidence, including classified evidence, that is relied upon by the three member military review panel in making a determination to release, transfer to Afghan authorities for prosecution, or continue the detainee’s detention. Detainees may now call “reasonably available witnesses” on their behalf, an important shift from the earlier policy that did not permit detainees to call any witnesses. Although such a provision to allow for witnesses was available in the Combatant Review Status Tribunals (CSRTs) in Guantanamo, it was inadequately implemented. And in a departure from past practice at Bagram, detainees will receive notice of the basis for their internment and an unclassified summary of the specific facts that resulted in their capture. Detainees now will also be able to attend all “open” sessions (where operational or national security information is not discussed) and will receive notice of the results of the review board within seven days after completion of the review.

“We recognize that the new procedures are an improvement over the previous review regime in Bagram, as they begin to address persistent concerns about prolonged and unjust detention of prisoners in Afghanistan. Further changes are necessary, however, to ensure detainees get a meaningful mechanism to challenge their detention,” said Human Rights First Counsel Sahr MuhammedAlly, who recently traveled to Afghanistan to interview more than a dozen former Bagram detainees about their capture, detention, and release. “Given the lessons learned from the discredited CSRTs in Guantanamo, the United States should go further and provide detainees with a legal representative to ensure an independent and fair hearing. It is equally important to improve the reliability of information leading to capture of an individual, a problem the DRBs do not address and which is important to mitigate erroneous captures.”

During Human Rights First’s April 2009 interviews of former Bagram detainees who stated that they were shown no evidence to support any accusations and given no opportunity to challenge their detention. In addition, detainees were not permitted to have village elders or witnesses vouch for them, nor could they question whether the allegations against them were based on individual animosities or tribal rivalries. When detainees were released they were given a piece of paper stating that they were no longer a threat to coalition forces.

The United States has paid a high price for these and other problems in Afghanistan. Civilian casualties, arbitrary detention, mistaken captures, ill-treatment and intrusive house searches have led to decreasing Afghan support of the U.S. mission there. A 2009 ABC News poll found that only 37% of Afghans say they support Western forces, down from 67% in 2006 and citing as reasons unjust U.S. military practices.

“Successful counterinsurgency strategy depends on U.S. actions being seen as fair by the Afghan people, whose consent and cooperation is needed to further U.S. goals in ensuring a stable Afghanistan,” said MuhammedAlly. “To achieve this goal, the U.S. and Afghan governments should enter into a public agreement that sets forth the grounds and procedures for U.S. detentions consistent with international law. The U.S. should also seek to involve the Afghan government in the detention review process to provide both independence to the proceedings and advance the U.S. strategic mission to grow the capacity of Afghans to provide for their own security.”

Human Rights First will be closely monitoring the implementation of these new procedures to evaluate their effectiveness in ensuring that detentions in Afghanistan are not arbitrary. As part of that evaluation, Human Rights First is calling for an independent, public monitoring of the implementation of the new procedures in order to fairly assess their effectiveness. The organization also urges the Obama Administration to order that detainees captured outside of Afghanistan and brought to Bagram be repatriated to their home countries for release or, where evidence exists, transferred for prosecution in either U.S. federal courts or in their home countries.

For more information about Human Rights First’s work in Afghanistan, please visit http://www.humanrightsfirst.org/us_law/detention/index.aspx.

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