Amid the near-constant speculation over President Barack Obama's strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the US and its NATO allies are to have a "credible partner" in the Afghan government.
But corruption takes many forms and is found at many levels. It is deeply ingrained in the DNA of the whole area. It is part of a way of life. Barack Obama knows if he can't change the culture of corruption, he can't accomplish any of his other goals - because the people simply won't trust their government.
To the lawyers of Human Rights First (HRF), understanding the relationship between corruption, how prisoners are treated and the rule of law is "critical to the success of any strategy" the Obama administration may decide to pursue.
Sahr MuhammedAlly, an HRF attorney and author of a new report, "Fixing Afghanistan," explained this. She told us, "Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated - a complete disaster," she says.
There are lots of examples. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.
A person gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again - because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man's land.
MuhammedAlly says "rule of law" training designed to prevent both kinds of situations has been going on for eight years, but has been "uncoordinated." She says the US, NATO and the Afghan government are going have to recognize that "further detention policy reforms at Bagram are critical to achieving US counterinsurgency goals in Afghanistan." And these reforms, she adds, are going to require substantial resources.
That is the central message of the new HRF policy paper. It outlines steps the United States should take now "to establish legitimacy in the eyes of the Afghan people and to more fully align US detentions with strategic priorities."
"Successful counterinsurgency depends on US actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.
The paper says, "To achieve this goal, the US government should take further steps now to support US goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of US detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."
The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the US military not to be a threat to US, Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.
According to those we interviewed in April, "prisoners held by the US military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al-Qaeda or supporters of other insurgent groups. They did not have lawyers."
Detainees, it continues, "were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the US military."
The report continues: "In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from US to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS), years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses, no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges."
Specifically, HRF recommends that the US and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for US detentions consistent with international law. In order to avoid mistaken captures, the organization says, the US must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.
The US must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint US-Afghan review body. The US should establish more transparency for detention operations by facilitating access to detainees and to US detention facilities by Afghan and international human rights organizations. And the US should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.
Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the US military at Bagram.
The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the US military.
Currently, these detainees - some of whom have been imprisoned for more than six years - do not have access to lawyers and have no right to hear the allegations against them. Their status as "enemy combatants" is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.
Also announced were reforms outlined in Gen. Stanley McChrystal's August 30 assessment on Afghanistan for both US and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.
General McChrystal noted that "detention operations, while critical to counterinsurgency operations, also have the potential to become a strategic liability for the US and ISAF" and concluded that the "desired endstate" is to transfer all detention operations, including US, to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.
"We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to US counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to US detention practices," said MuhammedAlly.
She said, "Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don't provide.
"It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address," she added.
MuhammedAlly called for independent, public monitoring of implementation of the new procedures in order to assess their effectiveness.
HRF's recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the "endstate" of transferring detention operations to the Afghan government. It also comes as the Obama administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.
In September, human rights activists and legal experts reacted swiftly to disclosures that the US government is planning to introduce new measures it claimed would give inmates at Afghanistan's notorious Bagram prison more opportunities to challenge their detention.
Their views ranged from cautious optimism to total condemnation.
Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction."
She told us, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, "only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors."
"The 'new' procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees," she said.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration's new rules would work.
He told us, "The administration's proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration's woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees' representative. This model was a complete failure for the CSRTs and should not be repeated."
He added, "It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.
He told us, "Whatever the new rules say, it's crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called 'war on terror' framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."
While it is unclear how soon the Pentagon's new guidelines will be implemented - largely because of lack of personnel - they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge's ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantanamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us, "Judge Bates' decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn't be manipulated to simply form new Guantanamos or law-free zones," Pitts said.
There are some 600-plus prisoners being held at Bagram. Some critics suspect that President Obama has been turning Bagram into "a new Guantanamo," since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.
How prisoners are treated is, of course, but a small part of the Afghan mosaic Obama and his team are grappling with. But a more just, more professional, more transparent, more accountable detention system could send an important signal to those Afghans whose help we are going to need if we remain there.