Arbitrary Justice

Conclusion and Recommendations

Facilitating the transfer of U.S. detainees from indefinite imprisonment in Guantánamo and other U.S. detention facilities to the custody of their home country governments – provided there is no risk of torture or ill-treatment upon return – is one key way towards the ultimate closure of Guantánamo and other U.S. detention facilities. But the transfers have to be done responsibly. The Afghan experience provides insights into important steps that can be taken to improve the process for those transferred home for criminal prosecutions. Both the Afghan and U.S. governments have to ensure that trials are conducted according to international fair trial standards.

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 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.