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Daphne Eviatar Headshot

Justice Remains Elusive for Many at U.S. Prison in Afghanistan

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In the summer of 2008, the United States military captured a 16-year-old Pakistani boy and imprisoned him at the Bagram air base in Afghanistan. According to his lawyers, for over a year his family had no idea where he was. When he was finally allowed to speak to relatives nearly two years later due to intervention by the Red Cross, Hamidullah Khan told his brother that he had had a hearing in the U.S. prison. The U.S. military judges had admitted lacking any evidence against him and recommended he be returned home to his family in Pakistan. Months later, he remains imprisoned at the U.S. detention facility in Afghanistan.

Hamidullah Khan is not alone. Of the 41 men who come from outside Afghanistan and remain locked in the U.S.-run prison at Bagram, more than a dozen have been recommended for release by U.S. military tribunals. Yet only one is currently scheduled to be sent home.

I arrived in Afghanistan last week to research U.S. detention here. According to the recently-released detainees I interviewed, prison conditions and treatment have significantly improved in recent years and prisoners now at least have a chance to plead their case in a hearing -- a big step up from the policies of the Bush administration. But I was shocked to learn that for some reason no one seems to know, prisoners from outside Afghanistan who are imprisoned here aren't being sent home even after they've won their case and been recommended for release.

Known as Detainee Review Boards, the hearings take place at the United States' recently-built Parwan Justice Center on the Bagram air base. Detainees are supposed to get a hearing about every six months, but they're not represented by lawyers and don't get to see much of the evidence against them. (I'll be writing more about this later). But it's still the only opportunity prisoners at Bagram have to make their case, ask relatives or village elders to speak on their behalf, and plead for release. Last year about 350 U.S. prisoners were released this way. But in some cases, even though a panel of military judges has ruled that the prisoner does not pose a security threat and the military has no evidence that he's done anything wrong, these men -- who come from Pakistan, Tunisia, Kuwait, Yemen and even Germany -- are still locked up in prison. At least one has been at Bagram since 2002.

Since arriving in Kabul a week ago, I've asked about a half dozen U.S. military and State Department officials in Afghanistan why that is. Nobody seems to know.

The reluctance to release these men may have something to do with the parallel holdup at Guantanamo Bay, where almost 90 prisoners have been approved for transfer or release but remain stuck in the U.S. prison there. Most of those detainees come from unstable countries such as Yemen, where the U.S. government categorically refuses to return Gitmo prisoners ever since one Yemeni over a year ago tried to blow up a plane bound for Detroit. Others, such as the Chinese Muslim Uighurs, don't want to return to home because they legitimately fear being tortured upon their return. Finding a place for these detainees to go is a challenge -- particularly since the United States has refused to accept a single one of them.

Congress just made returning Guantanamo prisoners even more difficult by blocking their transfer unless the Defense secretary and secretary of State will certify that the receiving country will prevent the detainee from getting involved in any future anti-U.S. activities.

But there's no legal bar on returning home innocent men, like Hamidullah Kahn, who've been recommended for release from Bagram. Yet for some reason, the U.S. government isn't doing it.

Officials in both the Defense and State Departments I spoke to say they're aware of the problem but it's out of their hands. When I was at the Parwan Justice Center at Bagram earlier this week watching Detainee Review Board hearings, one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they'll be going home, or what's causing the holdup. The problem, according to the U.S. officials I spoke to in Afghanistan, is somewhere in Washington.

Why should Washington start paying more attention to the problems of a dozen or so men? One military commander at Bagram I spoke to insisted this group makes up just a tiny percentage of the more than 1500 prisoners at Bagram -- not something to be too worried about, given the number of detainees. But it's still a big concern to the family of Hamidullah Khan. And outraging extended families in the region isn't going to help the United States.

What's more, the belief that the United States is imprisoning people without cause is widespread in Afghanistan. For a long time, that was because the U.S. didn't give detainees at Bagram any opportunity to defend themselves at all. They could be locked up for years without even knowing the charges against them. There are now almost three times as many prisoners at Bagram as there were during the Bush Administration. Although now they get hearings, they're not allowed to have lawyers and much of the evidence against them remains secret. The detainees never get to see or challenge it. Still, some detainees manage to win recommendations for release. But the United States' refusal to release the non-Afghans among them tells the entire prison population that this new so-called "justice" system -- and with it, U.S. respect for the rule of law -- is meaningless.

That's not going to help the U.S. military effort in Afghanistan.

What happened earlier this week in Jalalabad is illustrative. On Monday, hundreds of Taliban sympathizers rallied in an anti-U.S. protest at the funeral of a Guantanamo detainee who was returned home in a coffin after he died last week in the U.S. prison. Although the United States insists he was a known Taliban commander, 48-year-old Awal Gul was never charged or put on trial, so the government never proved its case. The Taliban and their sympathizers eagerly capitalized on that at home in Afghanistan. "Death to America!" was the rallying cry at the funeral.

As the war in Afghanistan drags into its tenth year, the United States doesn't need more martyrs. It does need to do a much better job of winning regional support for its mission. Sending innocent prisoners home would be a good start.