Prosecution of Guantánamo and Bagram Detainees

According to Afghan government sources, as of April 1, 2008, 250 detainees have been transferred to Block D, of which 160 have been referred for prosecution. There have been 65 convictions – 40 have been sentenced from 3 to 20 years imprisonment and 25 have been sentenced to time-served. There have been 17 acquittals. In these trials there are no prosecution witnesses to support the allegations. The verdicts of these trials appear entirely arbitrary.

Detainees in Block D are tried under the 1987 Law of Crimes Against the Internal and External Security of the Democratic Republic of Afghanistan (Internal and External Security Code). This law was enacted during the rule of the Soviet Union-supported Communist government of Afghanistan. Detainees have been charged with crimes including:

After transfer by the U.S. military of the Guantánamo or Bagram detainee, along with the evidence, further investigations of Block D detainees are carried out by Afghanistan's national intelligence agency, the National Directorate of Security. The NDS is one of the largest security sector agencies in Afghanistan. Its headquarters are in Kabul and it has sub-offices throughout the country. It receives aid and training from the German and U.S. governments.[48] The investigating arm of the NDS – Department 17 – is responsible for investigating the offenses, based on allegations by the United States, of the Guantánamo and Bagram detainees. A national security prosecutor then decides what charges to file against a detainee.

There reportedly is a classified presidential decree that sets out the NDS' mandate. In practice, the NDS appears to have a broad mandate that includes detention, interrogation, and investigation of persons alleged to have committed crimes against national security. In November 2007, during a visit to Afghanistan, Louise Arbour, the United Nations High Commissioner for Human Rights, noted her concern about NDS, "given that it is not a regular law enforcement body and operates on the basis of a secret decree. . . . [and] urged the President to ensure greater transparency, access to, and accountability of this institution, starting with publication of the decree on which its powers are based." [49]

Afghan government prosecutors told Human Rights First that the U.S. government provides the Afghans with the basic "evidence" which forms the foundation for the Afghan charges against the transferred Guantánamo and Bagram detainees. U.S. authorities provide their Afghan counterparts with a file on each detainee. The file contains an Unclassified English version of the "Detainee Assessment Branch Report of Investigation" (ROI) (a copy of a ROI is available at Appendix C). The file also contains an unofficial translation of the ROI in Dari, and photographs of evidence, if any, allegedly seized with the detainee at the time of capture.

Human Rights First has examined the trial dossiers of two defendants. The ROIs are highly general and state the date of capture, by whom (e.g., Coalition Forces, Afghan National Army or Afghan National Police), and what the detainee was alleged to have done. Prosecutors and lawyers confirmed that sometimes the name of an American appears in the files, for example, the name of the U.S. military judge advocate (lawyer) who reviewed the investigation form.[50] But there are no names of individual witnesses other than perhaps another detainee captured at the same time. Sometimes witnesses are identified simply as "Coalition Forces" or "ANA" or "ANP." There also are no statements in the court dossier – sworn or unsworn – of any U.S. soldiers or officials involved in the capture or interrogation of the detainee.

Afghanistan's criminal procedure is based on civil law. Fact-finding is done by the investigative prosecutor (primary saranwal) who plays the role of an inquisitor whose objective is to ascertain the truth, and has broad powers to compel testimony, seek out experts, and collect and preserve evidence.[51] The prosecutor must seek out both exculpatory and inculpatory evidence in order to assess whether there is sufficient evidence for trial.[52] All evidence collected and testimony taken are compiled in a written dossier and submitted to the judges appointed to the case. During the investigative phase, the accused and the accused's lawyer have the right to be present while the investigative prosecutor collects evidence. [53] If the case is referred to trial, everything contained in the dossier constitutes evidence, and the trial court is entitled to treat all witness testimony in the investigative dossier as having been given at trial.

A former Bagram detainee's dossier also may contain a summary of the review before the Enemy Combatant Review Board. For instance, in one case we examined, an ECRB concluded that a detainee was a "Low Threat LLEC [Low Level Enemy Combatant]" and the ECRB's assessment is "Low Threat to US/CF [Coalition Forces]/Low Prosecution Value." (See Appendix D). Upon transfer to the Afghans for prosecution, this detainee was charged with destruction (article 5 of the Internal and External Security Code), convicted, and sentenced to eight years. There were no witnesses at trial.

Both Afghan prosecutors and defense lawyers told Human Rights First that there is very little real evidence provided by U.S. authorities. One lawyer stated:

Evidence is slim. It's given to the Afghans by the Americans. For instance, the file will mention a car, but no license plate, or some say guns, but where is the gun or ammunition. We review a file with typed notes in English with translation in Dari, but the evidence itself is not that much.[54]

The evidence used against the defendants is usually very weak and there is usually not a lot of it. For example, one client was charged with having a weapon and in his file there was a picture of the weapon. But the actual weapon was not provided. There were no details about the type of weapon or who arrested him. What he was doing with the weapon.[55]

One defense counsel stated that when he questions the validity of the evidence during trial, the prosecutors' standard response is:

Why would the Americans detain him then? The U.S. has nothing against this person unless he's guilty."[56]

After receiving the evidence files from U.S. authorities, the Afghan authorities then conduct their own cursory investigation. "As raw materials we use the evidence from the U.S.," explained a national security prosecutor.[57] Department 17 of the NDS (the investigatory branch of NDS) in Kabul then sends a letter of inquiry to the local NDS office nearest to the detainee's hometown and/or place of capture, asking if there is any information about the detainee's alleged crime. The local NDS official sends a letter to Department 17 summarizing their findings. Human Rights First examined information in several cases provided by the local NDS offices. Based on our review of these files and discussion with counsel, it is clear that the NDS investigation is very superficial and based on second-, or even third-hand information. Again, there are no sworn witness statements.

The NDS investigative department and a national security investigative prosecutor then interview the defendant and write up the indictment based on information provided by the local NDS office and the United States.[58] One former Block D defendant – who was tried without counsel – told Human Rights First that he was interviewed by the prosecutor only once before his trial.[59]

One lawyer stated that "prosecutors actually have a difficult time in putting together charges because of the weak evidence."[60] Despite this observation, the weak evidence has resulted in far more convictions than acquittals. This can be explained by the trial judges' inclination in a civil law system to rely heavily on the prosecutor – which obviously works best when the prosecutor is fulfilling his responsibility to be objective and not adversarial in the case, and is diligent in constructing a case based on real evidence. In these trials, while in theory there is a presumption of innocence, in practice, the burden appears to be entirely on the accused to prove his innocence, and the means to do so are scant. In response to a question by Human Rights First regarding challenges by defense counsel to weight of the evidence, a judge explained:

The information comes from the Coalition Forces. We are sure that these people arrested were not arrested for nothing. The U.S. is not lying.[61]

Human Rights First met with U.S. embassy officials in Kabul to discuss the proceedings, how evidence was being introduced in violation of the Afghan criminal procedure code and international law, and how defense lawyers' challenges to the evidence were not being considered by the court. An embassy official commented, "challenges based on evidence even on appeal will not be enough to overturn the verdict." "It would not be basis for reversal," he added.[62]

In addition to challenging the prosecution's case directly (discussed in section V), defense lawyers in these cases try to submit to the court their own letters from village and tribal elders and provincial council members attesting to the defendants' innocence. One defense lawyer told Human Rights First, "We try to collect evidence. For example, if a family is in Gardez, we contact them to get letters from elders in the village and local governors who can attest to the innocence and guarantee that the person will be peaceful and not opposed to the government."[63] A judge, however, dismissed the validity of these letters and told Human Rights First that such letters "are not given much consideration in determining the guilt or innocence."[64] Such information, of course – when it supports guilt – from the same sources is exactly what is gathered by the NDS in the course of the Afghan government investigation. And these letters, from village elders and local governors, are relied upon by the Afghan government's National Commission for Peace and Reconciliation when negotiating the direct release of detainees from U.S. custody.[65]

Detainees' family members have tried to show innocence by obtaining letters from village and tribal elders, as well as from the local member of government or governor attesting to the innocence of the detainee. Some of these letters have been provided to habeas counsel in the United States, to be submitted to U.S. authorities on behalf of Guantánamo detainees. A brother of a Guantánamo detainee expressed the efforts taken to secure these letters, saying:

You know for each signature in the letters on my brother's behalf it took weeks and months. I was robbed because people said they will help me, but no one can help against the U.S.[66]

Another family member described his efforts to release his brother:

My brother is not Taliban or al Qaeda. Keeping innocent person for six years is persecution. No one cares about them. When I talk about my brother everyone says sorry. I have struggled so much. I have gone to the National Security Council, the Peace and Reconciliation Committee. They say yes it's sad, but no one can help us. I have all the guarantee letters signed by the district governor, elders and I took it to the Reconciliation Committee. They say they don't have the power. [67]

Human Rights First attended two trials of Block D defendants. Both trials involved defendants who were detained by the U.S. military at Bagram. Each trial lasted about 30 minutes. In each trial, the prosecutor read the charges and his prepared statement, then defense counsel read a prepared statement, and a three-panel judge asked questions. The defendant responded to the judges' questions and made a statement as well – in both cases denying their guilt. No witness other than the defendant appeared or testified.

One judge read excerpts from a letter prepared by the NDS summarizing its findings. Neither the prosecutor nor any judge read any witness accounts or even mentioned the names of witnesses. Human Rights First examined the dossier of one these cases and saw no witness statements. Both defendants were convicted.

During each trial, Human Rights First observed that defense counsel raised several objections to the lack of evidence and witnesses to support the allegations and that the evidence was collected in violation of Afghan criminal procedure law. The judges did not respond to the defense counsel's legal objections.

Below are excerpts from an exchange between a judge and defense lawyer observed by Human Rights First:

Judge: Why then was your client arrested amongst so many others and why did people say he was a Talib, and why did the ANA [Afghan National Army] fire upon him in the garden?

Defense Lawyer: Where is the evidence that my client was in the area where the attack happened?

Prosecutor: Eyewitnesses said this right after the arrest and he was arrested in the act with a gun and radio.

Prosecutor: It is America's job to do this if agreed upon by the Afghan government.

The trial lasted 30 minutes. The defendant was charged under article 23 (assisting enemy forces), convicted, and sentenced to ten years' imprisonment – the maximum sentence for the offense. The judge asked the defendant if he accepted the sentence. The defendant rejected the sentence and said that he wanted to appeal. The defendant was told that he had a right to appeal within 20 days and was instructed to put his thumbprint on the sentence slip. To date, no appeal has taken place.

Law & Security

Arbitrary Justice

Prosecution of Guantánamo and Bagram Detainees

The Role of the National Directorate of Security in Investigations

The Evidence

Observations of Trial Proceedings