Arbitrary Justice

Executive Summary

-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 U.S. 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 have been and are continuing to be prosecuted based on allegations by the United States, with little evidence. Prosecutions have resulted 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

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, 65 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; 17 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 U.S. 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 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.