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Arbitrary Justice
Trials of Guantánamo and Bagram
Detainees in Afghanistan
April 2008
About this Report
 Human Rights First conducted research for this report in January-February
2008 in Kabul, Afghanistan, and follow-up research from New York. Human
Rights First interviewed family members of Guantánamo returnees, a Block
D defendant, defense lawyers, Afghan government officials, including prosecutors
and judges, and officials from the U.S. embassy in Kabul. Human Rights First
also observed two trials and examined court documents.
I. Executive Summary
“I had goggles put over my eyes, I was handcuffed,
and my legs were chained to the floor
of the plane. The plane left Guantánamo and I arrived in Bagram.
When we arrived, they
took the goggles off and took my picture. I recognized that I was in
Bagram, in Afghanistan.
I had been here before. ... The goggles were over my eyes again and
we were taken to
Pul-i-Charkhi. ... I don’t know who greeted us but I heard Dari.
We were taken inside.
They took the goggles off. ... I [then] saw ANA [Afghan National
Army] soldiers.”
— Human Rights First interview
with Guantánamo returnee,
Kabul, January
30, 2008
(describing his August 2007
return from
Guantánamo to
Afghanistan).
Blindfolded and handcuffed, detainees from Guantánamo Bay, Cuba and
Bagram Airfield, Afghanistan are handed over by the United States to the Afghan
government. After years of imprisonment without due process, the United States
has concluded that their continued detention by United States authorities is
no longer necessary. As the calls to close Guantánamo continue—including
by U.S. Secretary of Defense Robert Gates, U.S. Secretary of State Condoleezza
Rice, and Republican and Democratic presidential candidates—the transfer
of detainees to their country of origin is not entirely without peril.[1] Since
2007, Afghans transferred by the United States to the Afghan government are being
prosecuted based on allegations by the United States, but little evidence resulting
in convictions for most in proceedings that fail to meet international or even
Afghan fair trial standards.
At this writing, over 30 Afghans remain in Guantánamo, down from approximately
200 in 2002. Similar transfers to other countries have reduced Guantánamo’s
overall prison population from over 750 at its peak to 280 today. But another
600 remain at the U.S. military’s Bagram Theater Internment Facility (BTIF)
in Afghanistan.
Facilitating the transfer of detainees to their home country is one way to
close Guantánamo and other U.S. detention facilities, but transfers must
be done responsibly.
This report looks at the arrangement between the United States and Afghan
governments under which some Afghans in U.S. custody—both from Guantánamo
and Bagram—are being transferred to the Afghan government for criminal
prosecution. Based on first-hand interviews, examination of court documents,
and trial observations in Kabul, Afghanistan, the report describes how Afghans
transferred from U.S. custody are being charged and tried under Afghan law based
on allegations, but little else, provided by the United States.
Bagram—The Other Guantánamo
While
the U.S. detention camps at Guantánamo are well known, the same
cannot be said for the U.S. military detention facility in Afghanistan—the
Bagram Theater Internment Facility in Bagram Air Field (BAF). BAF is the largest
Coalition and U.S. military base in Afghanistan. The Bagram Theater Internment
Facility, under U.S. military control, now holds, without charge or trial, more
than twice the number of detainees in Guantánamo
In April 2007, the Afghan National Detention Facility (ANDF) began operating
in Pul-i-Charkhi prison located in the outskirts of Kabul. Known locally as “Block
D,” the detention facility was built by the U.S. government for Afghans
to hold and prosecute former Guantánamo and Bagram detainees under Afghan
law. The Afghan decision to prosecute, however, actually represented a rebuff
to pressure by U.S. officials for the Afghans to detain transferred “enemy
combatants” indefinitely, along the lines the United States has employed
in Guantánamo and other detention facilities. Instead, an agreement was
reached between Afghan and U.S. officials under which Afghanistan would prosecute
the transferred detainees in Afghan courts.
At this writing, according to Afghan government officials, more than 250 former
Guantánamo and Bagram detainees have been transferred to Block D. More
than 160 have been referred for prosecution, while charges against the rest have
not yet been finalized. The detainees are being charged under Afghan law for
crimes ranging from treason and destruction of government property to threatening
the security of Afghanistan. Trials last between 30 minutes to an hour and defendants
have been sentenced to terms of imprisonment ranging from 3 to 20 years.
Human Rights First observed two trials and examined the evidence that was
the basis of the court’s judgments. The two cases lacked credible evidence
to support the charges. The evidence presented included:
- A summary description
of the circumstances of initial arrest read out in court by the prosecution and
judge;
- A photograph provided
by U.S. officials of an explosive or gun allegedly found at the time of arrest,
without any information regarding witnesses or chain of custody;
- A statement by the
defendant taken by the Afghan National Directorate of Security (NDS)—the
Afghan national intelligence agency—and a national security prosecutor;
and
- A statement by NDS
summarizing vague findings arrived at several years after the date of arrest.
Based on information provided by Afghan judges, prosecutors, and defense lawyers,
the experience of these two trials observed by Human Rights First was not unique.
We were told that these trials were representative of Block D trials. Since the
trials began in October 2007, sixty-five persons have been convicted in violation
of fair trial standards based on allegations and evidence provided by the United
States and supplemented by the Afghans. Seventeen have been acquitted.
During the trials, there are no prosecution witnesses presented, no out-of-court
sworn prosecution witness statements to support the charges, and little or no
physical evidence is presented. Defense counsel is not present when his client
is interrogated by the prosecution, nor when the local NDS office attempts to
collect evidence about a suspect as required by Afghan law. Defendants are thus
unable to effectively challenge the evidence against them or cross-examine witnesses
to the allegation, either in the pre-trial investigatory phase or during trial
as allowed by Afghan law. Lawyers, in fact, are appointed to the case only after
the investigation is concluded and generally have five days to review the government’s
evidence prior to trial, thereby impeding counsel from adequately preparing for
trial. Such trials violate both Afghan criminal procedure law and international
fair trial standards. And the outcomes of these trials—the acquittals as
well as the convictions—appear entirely arbitrary.
Human Rights First has long advocated the importance of adherence to international
fair trial standards, and the transfer of detainees to their country of origin,
provided that there is no risk of torture or ill-treatment upon return. Where
there is evidence of criminal activity, persons should be tried in proceedings
that comport with international fair trial standards. In Afghanistan, the trials
of former Bagram and Guantánamo detainees being conducted since October
2007 fall far short of this mark.
It should be noted that at this writing, Human Rights First is aware of no
evidence that Guantánamo or Bagram returnees in Block D are being mistreated
by the Afghan government. In addition, we applaud the Afghan government’s
decision to use its regular criminal justice system as the mechanism for adjudicating
the guilt or innocence of these detainees. And finally, Human Rights First supports
the transfer of detainees, as here, from isolated and indefinite U.S. custody
to the custody of their home country governments, where they can renew contacts
with family, and be subjected to an actual legal process rather than indefinite
imprisonment. But it is critical that trials meet international fair trial standards.
The United States is one of the largest donors underwriting justice sector
reforms in Afghanistan, and has for years been involved in drafting laws; training
and equipping the national police force; renovating and building justice sector
facilities throughout the country; and training judges, prosecutors and defense
counsel on criminal justice, human rights, and rule of law issues. At a panel
discussion on Afghan judicial reform in March 2008, Ambassador Thomas Schweich,
Coordinator on Counternarcotics and Justice Reform in Afghanistan, in response
to a question regarding criminal trials in Afghanistan, said that sometimes people
are accused of a crime but “mere accusation does not mean guilt … one
needs evidence in court.”[2] This
principle should apply with equal force to the trials of Bagram and Guantánamo
defendants. The United States should not undermine its own judicial reform efforts
in Afghanistan by being complicit in fair trial violations.
The United States government, which detained, interrogated, and imprisoned
these persons, in many cases, for years—and now appears to encourage Afghan
government criminal prosecutions and continued detention—should take steps
to support legitimate prosecutions in the Afghan courts.
Human Rights First makes
the following recommendations to the governments of Afghanistan and the United
States:
To the United States Department of Defense
- Provide non-classified
information, including exculpatory evidence, to the Afghan authorities to assist
in criminal prosecutions. Specifically:
- Make available
to Afghan officials the names of soldiers or other personnel involved in the
apprehension of each detainee, witnesses to the alleged offense, and personnel
involved in any interrogation of the detainee resulting in admissions or statements
relevant to alleged offenses by the detainees, and make soldiers and or witnesses
reasonably available for testimony, through video teleconference if necessary,
for criminal proceedings; and
- Provide Afghan
authorities all statements by the transferred detainee; all reports, summaries,
notes or other records of interrogation of the detainee; and any physical or
documentary evidence in the possession of the U.S. government regarding each
transferred detainee, including, for example, notes, seized weapons or ammunition.
- Refrain from transferring
any evidence obtained through coercion or cruel, inhuman or degrading treatment
for the use in criminal prosecutions by other governments.
- For detainees apprehended
in the future: ensure that units participating in operations likely to result
in the detention of civilians include personnel trained and equipped for elementary
evidence collection procedures, in order to better ensure that detainees transferred
to the Afghan government for prosecution can be lawfully prosecuted.
- Establish a legal
support operation in Kabul to support the legitimate prosecution in Afghan courts
of detainees transferred by the United States
To the Afghan Attorney General’s office and the National Directorate
of Security
- Request all relevant
evidence in the possession of U.S. authorities, including exculpatory, regarding
a detainee be turned over to Afghan officials at the time of transfer.
To the Afghan Supreme Court
and Ministry of Justice
- Direct judges presiding
over prosecutions of detainees transferred by the U.S. military to apply, and
comply with, the Afghan criminal procedure code and international fair trial
standards. Specifically, the Afghan courts in these cases should:
- Ensure that defense
counsel has access to all information that will be relied upon by the prosecution
during trial;
- Allow defense
counsel to be present during the questioning of a defendant by the investigator
and prosecutor prior to trial;
- Require in-court
witness testimony and allow cross-examination of witnesses by defense counsel;
and
- Refrain from relying
upon any defendant’s statement to U.S. or Afghan officials unless the defendant
confesses in court under oath and without compulsion—as required by both
the Afghan Constitution and criminal procedure code.
To the Afghan Supreme Court and
Ministry of Defense
- Ensure that trials of former Guantánamo and Bagram defendants are
open to observers, including family members, and the media.
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