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Daphne Eviatar Headshot

Obama and Karzai Talk, but the Fate of 3000 U.S. Prisoners in Afghanistan Remains a Mystery

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It's nice to hear that President Obama called Afghan President Hamid Karzai today to congratulate him on the birth of his new daughter. Among other subjects that reportedly came up were the pace of the U.S. troop withdrawal from Afghanistan and the presence of foreign troops in Afghan villages.

One thing I'd like to hear the two leaders talk about -- or at least someone from their respective governments mention -- is some key details of the sketchily-reported agreement to transfer more than 3000 Afghans, now imprisoned by the United States at the Bagram Air Base, to Afghan control.

Announced last Friday, there's been almost no news about the deal since. And the text of the agreement -- this Memorandum of Understanding -- sheds little light on some key questions.

For one thing, the agreement refers to a new Afghan law that allows indefinite detention without trial in Afghanistan. President Karzai has always insisted that such "administrative" detention is not allowed in his country. Suddenly it is?

Afghan lawyers I've asked about this have no idea what law the agreement refers to. And neither Defense Department nor State Department officials have been able to provide or identify it, either. Does the U.S. government even have a copy?

This isn't an irrelevant detail. Under international law, the United States must ensure that anyone it transfers to another government does not face a real risk of torture or other violations of their rights under international humanitarian or human rights law. One of the guarantees of international human rights law is a right to due process -- which in this case would mean a right to a hearing that provides a meaningful opportunity to contest one's detention by the government. Does Afghanistan plan to provide that to detainees, after they're transferred?

The United States never did. It finally provided rudimentary hearings that detainees could attend starting in 2009, but the detainees weren't allowed a lawyer or even to see the evidence against them. Is Afghanistan going to do any better?

Judging by the dismal state of the Afghan justice system, I'm skeptical.

And what about the risk of torture? The United Nations reported just last year that Afghan's security forces systematically torture detainees to get them to confess. In the new agreement, the Afghan government promises to treat its detainees humanely.

That's nice. But why should we believe them? The U.S. government is legally bound to look beyond the formulaic promises to protect the detainees it's captured, held indefinitely without trial, and will now transfer to a government with a lousy human rights record.

Don't get me wrong: I'm happy to hear that the U.S. military is starting to think about how it's going to get out of the indefinite detention business in Afghanistan. But President Karzai is hardly the most trustworthy partner. Any deal should include serious safeguards to protect the thousands of Afghans now under U.S. control, many of whom may have done nothing wrong. (It's hard to know for sure, but the U.S. government clearly had its thumb on the scales of justice in the summary Detainee Review Board hearings I observed last year.) Afghan detainees are not a legitimate bargaining chip.

President Obama is surely negotiating U.S. troop withdrawal carefully so as to keep U.S. soldiers from facing unnecessary risks. He should take the same care with the lives of Afghans.