Rule of law is the lynchpin to long-term stability in Afghanistan. Yet
the military's tradition of steering clear of law enforcement
activities, especially evidence-gathering responsibilities, is
weakening Afghanistan's already imperiled justice system.
A recommendation in Gen. Stanley McChrystal's
assessment may finally cast that tradition aside. It suggests that
international forces be trained to "better collect...evidence for
prosecution" in Afghan courts. If done correctly, this could
dramatically improve Afghan security and strengthen the country's rule
When international forces capture somebody -- during a battle, a house
search, while on patrol -- they interrogate the detainee, gather
biographical information, snap some photos, take finger prints, and
write a brief report. The detainee, along with the information, is
then handed over to Afghan authorities for criminal investigation and
prosecution (unless the person is released -- or kept at the
U.S.-controlled Bagram detention facility).
Afghanistan's central Pul-e Charkhi prison facility holds over 5,000 detainees
The big three detaining powers in Afghanistan are the United States,
United Kingdom, and Canada -- in that order. Some countries do better
than others at gathering information. For instance, Canada sometimes
conducts gunpowder resin tests. But military operations need to
include more people who are trained in essential evidence gathering
techniques, such as maintaining a chain of custody. The International
Security Assistance Force (ISAF) should establish uniform guidance on
how to collect information. And international forces should also take
into account what Afghan judges and prosecutors regard as strong
Because these practices aren't in place, Afghan officials are handed a
variety of different types of documents and evidence often ill-suited
for Afghan courts. The Afghanistan Working Group on Conflict-Related
Detentions, a group of Afghan human rights and legal aid organizations
working on detention issues, has pointed out that the "information
that ISAF states currently gather on detainees at the point of capture
is often insufficient for Afghan prosecutors to use for prosecutions."
As a result, people who may in fact have been guilty have been set
free due to lack of evidence.
One Afghan law enforcement official confided in me that the
information the United States provides "is not proof or evidence... The
U.S. needs to prepare the evidence in accordance with Afghan law. The
U.S. doesn't have the same law or the same crimes. U.S. troops need to
know our Constitution and laws. They should learn what kind of
evidence is best for Afghan law. Seven to eight years has passed and
by now they should know the system." He also suggested the United
States provide better witness lists.
Another problem is the rampant corruption within the justice system
that allows criminals to bribe their way free. But the official
pointed out that with stronger evidence, it would be harder to hide
In late 2007, the United States began transferring Bagram detainees to
a wing of the Pul-i Charkhi prison known as "Block D." More than 600
have been transferred so far. The concept of handing detention powers
over to the Afghans was commendable, but the destructive power of poor
evidence in an already weak justice system quickly became apparent.
At Block D, witnesses rarely appear, defense lawyers are notified of
trials at the last minute, physical evidence is rarely produced, and
judges rely too heavily on weak U.S. evidence. An Afghan judge told me
frankly, if naively: "The evidence is based on information we get from
[United States] and we are sure that people who were arrested are
arrested for something they did wrong and we are sure that the U.S. is
not lying." None of this strengthens Afghanistan's rule of law.
ISAF detention policy is also deficient. The media and human rights
groups rarely know what happens at the trials of ISAF detainees once
handed over the Afghan custody. The guilty can often pay their way to
freedom while pre-trail detention and unfair trials condemn others to
years in prison. Canada, Denmark, the Netherlands, Norway, the United
Kingdom, and the United States have signed agreements that allow them
to monitor the treatment of the people they transfer. But even so,
several detainees have alleged that they were tortured in Afghan
custody after transfer.
One solution to the lack of sufficient evidence to convict -- a bad
solution -- would be for Afghanistan to create its own indefinite
detention regime. Initially the United States proposed exactly this to
the Afghanistan government, and recommended that it establish review
boards similar to those at Guantanamo Bay. This program would have
legalized a detention system with no adequate oversight in a country
with rampant corruption -- a disastrous equation for rule of law.
President Karzai rightly refused after his Attorney General insisted
that the plan would be unconstitutional.
Rooting out corruption and strengthening a justice system isn't easy.
The United States and European Council are currently reassessing ways
to improve on eight years of lackluster results. Part of this effort
must include international forces improving and standardizing their
information gathering techniques and taking into account the needs of
Honest Afghan prosecutors could then build stronger cases; and strong
evidence makes it harder for corrupt judges and prosecutors to take
bribes, tamper with evidence, and send innocent people to jail. ISAF,
which is stuck knowing that corruption allows their transferred
detainees to bribe their way back to planting road side bombs, could
use the evidence as leverage to confront the government when this