THE BLOG
01/09/2012 08:59 am ET Updated Mar 09, 2012

The Latest Skirmish in Afghanistan: Hate to Say We Told You So

The latest dust-up between the U.S. government and Afghan president Hamid Karzai involves the treatment of some 3000 prisoners the U.S. is holding in Afghanistan. The lack of due process for detainees at Bagram has been a problem since the prison opened, and was documented most recently in a report Human Rights First released last May. Congress actually attempted to address the problem in its latest defense authorization bill, which said the U.S. should provide detainees in Afghanistan with defense lawyers and neutral military judges to hear their cases. President Obama, however, in a statement he signed on New Year's Eve, signaled that he plans to ignore that.

The United States' failure to accord suspects imprisoned by our military in another country the right to defend themselves is now coming back to bite us. Although this isn't the first time Karzai has complained about U.S. actions, in part for his own political reasons, the U.S. has given him plenty of material to support his complaints.

In the past, it's been the night raids by U.S. and NATO forces that have enraged the Afghans, who find it an affront to have foreign soldiers raiding their homes in the middle of the night based on secret claims by unnamed informants.

Now, it's the fact that some 3000 Afghan men (and several dozen from other countries) are being imprisoned based largely on secret evidence that U.S. forces admit wouldn't hold up in a real court of law.

According to the Associated Press:

Members of the Afghan investigation said U.S. officials told them that many of those militant suspects held at the U.S.-run portion of the prison outside Bagram Air Base north of Kabul were taken based on intelligence that cannot be used in Afghan courts.

Gul Rahman Qazi, who led the Afghan investigation, said: "Detainees interviewed during two visits by the investigators complained of freezing cold, humiliating strip searches and being deprived of light, according to Gul Rahman Qazi, who led the investigation ordered by Karzai."

These complaints echo those my colleague, Gabor Rona, Human Rights First's International Legal Director, and I heard when we interviewed former detainees in Kabul last year. And although we documented them in a 42-page report and have discussed our findings extensively with U.S. government officials, the U.S. embassy spokesman acted as if this was the first time they'd heard such claims:

"American officials only received the commission's report after its press briefing," said the U.S. embassy spokesman, adding that the U.S. investigates all allegations of prisoner abuse. "We will certainly take seriously the report and study it," he said. He added that the U.S. is committed to working with the Afghan government on a joint plan to turn over detainees "in a responsible manner."

Responsibility begins with due process.

As we wrote in our report in May, based on our observations of the hearings given to detainees at the U.S.-run detention facility at Bagram: "the current system of administrative hearings provided by the U.S. military fails to provide detainees with an adequate opportunity to defend themselves against charges that they are collaborating with insurgents and present a threat to U.S. forces."

As a result, the U.S. hearings "fall short of minimum standards of due process required by international law."

For President Karzai, that's an argument that the U.S. should immediately turn the thousands of detainees it's holding over to the government of Afghanistan. But that would do little to solve the problem. The United Nations reported in October that Afghanistan's intelligence service systematically tortures detainees during interrogations. The U.S. government cannot hand prisoners over to the Afghans if they're likely to be tortured, according to its obligations under international law. And unfortunately, as we also noted in our report, the Afghan justice system, although improving with the growing introduction of defense lawyers, is still hardly a model of due process.

Still, unlike the United States, at least Afghan law does not permit detention without criminal charge, trial and conviction. The United States hasn't exactly proven itself the best model for the Afghan justice system.

Restoring U.S. credibility is going to be key to our ability to withdraw from Afghanistan without it becoming a future threat to U.S. national security. The U.S. government can't credibly insist that the Afghans improve their justice system and treatment of detainees if the U.S. military doesn't first get its own detention house in order.

Whether for the sake of international law, U.S. credibility, or merely to improve relations with the Karzai government, upon which U.S. withdrawal from Afghanistan depends, the U.S. military needs to start providing real justice to the thousands of prisoners in its custody.

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