Arbitrary Justice

Guantánamo and Bagram Detentions

Following the U.S. invasion of Afghanistan in October 2001, the United States captured and transferred over 750 persons to Guantánamo Bay, Cuba. In 2007, 35 Afghans from Guantánamo were returned to Afghanistan.[3] At its peak, there were 200 Afghans in Guantánamo – more than 30 remain as of April 2008. In contrast, more than 600 persons are being held in U.S. military custody in Bagram Air Field.

The United States has slowly been transferring many Guantánamo detainees back to their home countries. At this writing, 280 men are still imprisoned in Guantánamo – almost all detained now for five or six years – all without trial. The Bush Administration has indicated that it ultimately intends to prosecute 80 persons detained in Guantánamo before its military commissions, although at this writing only 15 have been charged, and to date no trials have begun.[4]

Following the U.S. invasion in Afghanistan, many detainees initially were held in Bagram and then transferred to Guantánamo. Soon after the U.S. Supreme Court decisions in Rasul v. Bush, 542 U.S. 466 (2004) and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which recognized limited rights of Guantánamo detainees to challenge their detentions in U.S. courts, transfers from Bagram to Guantánamo declined.

Detainees sent by the United States to Guantánamo were not afforded any individualized determination of Prisoner of War status before a competent tribunal, as provided by Article 5 of the Third Geneva Convention. The Bush Administration has consistently stated that persons held in Bagram and Guantánamo, including Taliban members, are categorically not prisoners of war and thus not entitled to Article 5 hearings. Following the Rasul and Hamdi Supreme Court decisions, the Department of Defense began conducting Combatant Status Review Tribunal (CSRT) hearings for Guantánamo detainees.[7] Detainees in CSRTs are not provided lawyers, are given only a summary of the allegations against them, and have in all cases been denied requests to bring in outside witnesses to help establish their innocence. CSRTs may also review secret evidence that detainees are unable to confront. The U.S. government also set up Administrative Review Boards (ARBs) to annually review each detainee's CSRT-designated status as an enemy combatant.[8]

According to U.S. government court filings in U.S. District Court, for persons transferred to Bagram a panel of five U.S. military officers, sitting as the Enemy Combatant Review Board (ECRB), review the detainees' status usually within 75 days of their capture and thereafter every six months.[9] The ECRB may recommend by a majority vote to the Commanding General or his designee on the detainee's status after reviewing evidence. Much of the evidence before the ECRBs is culled from military personnel involved in the capture.[10] The evidence relied upon by the ECRB includes "testimony from individuals involved in the capture and interrogation of the detainee." [11] The detainee generally does not appear before the ECRB at either the initial status hearing or the bi-annual review.[12]

The U.S. military exercises control over detainees in U.S. custody in Afghanistan, ostensibly pursuant to the May 23, 2005, Joint Declaration of the United States-Afghanistan Strategic Partnership (Joint Declaration).[13] However, there actually is no express authorization in the Joint Declaration for U.S. detainee operations in Afghanistan. The closest the document comes to addressing the topic is its statement that "U.S. military forces operating in Afghanistan will continue to have access to Bagram Air Base and its facilities, and facilities at other locations as may be mutually determined and . . . the U.S. and Coalition Forces are to continue to have the freedom of action required to conduct appropriate military operations."[14]

The Joint Declaration, however, does address detainee operations by the Afghan government: "As Afghan Government capabilities increase . . . the Afghan Government intends to maintain capabilities for the detention, as appropriate, of persons apprehended in the War on Terror."[15] Thus, in August 2005, the Afghan and U.S. governments entered into a bilateral agreement through an exchange of diplomatic notes (the 2005 Notes) that set forth conditions for the transfer of Afghan detainees in United States custody to the Afghan government. The 2005 Notes are not available publicly, but a reference to an agreement between the two countries regarding detainees – that is, this exchange of notes – is contained in a U.S. Embassy Kabul press release, dated August 4, 2005, which states:

During their May 2005 meetings, President Bush and President Karzai expressed a strong desire to return Afghan detainees to Afghanistan as part of the U.S.-Afghanistan Strategic Partnership.

Today, in beginning to implement the Joint Declaration on Strategic Partnership, Afghanistan and the United States reached an understanding that will allow for the gradual transfer of Afghan detainees to the exclusive custody and control of the Afghan Government.

The Government of Afghanistan will accept responsibility for the returning Afghan citizens and will work to ensure that they do not pose a continuing threat to Afghanistan, the Coalition, or the international community as a whole. The United States is prepared to assist Afghanistan in capacity building, including infrastructure, and to provide training, as appropriate.[16]

According to the New York Times, which has a draft of the 2005 Notes, Washington has asked Kabul to share intelligence information from the detainees, "utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release," and "confiscate or deny passports and take measures to prevent each national from traveling outside Afghanistan."[17] As part of the accord, the United States said it would finance the rebuilding of an Afghan prison block and help equip and train an Afghan guard force.[18] Block D in Pul-i-Charkhi is that prison block.

U.S. Involvement in Justice Sector Reform in Afghanistan

Notwithstanding the Afghan commitment in the Joint Declaration, it was – and remains – unclear under what legal authority the Afghan government may detain persons transferred by the United States and housed in Block D. Afghan officials rejected suggestions by U.S. officials that the Afghan government simply assert authority to detain "enemy combatants" indefinitely as the U.S. government has done in Guantánamo.[26]

Instead, an agreement was reached between the two governments that the Afghan government would prosecute Guantánamo and Bagram detainees in Afghan courts under Afghan law. An Afghan official explained to Human Rights First that, according to the agreement

between Afghan and U.S. authorities, detainees from Guantánamo and Bagram are to be transferred to Block D for prosecutions.[27] A team of National Directorate Security investigators and prosecutors visit Bagram and along with U.S. authorities "filter cases for prosecution."[28] The two governments decide which detainees should be prosecuted and which can be released directly from Bagram through the Afghan National Commission for Peace and Reconciliation – the official entity charged with reintegrating into society members of the armed opposition to the Afghan government.[29]