JURIST Special Guest Columnist Andrea Prasow, senior counter-terrorism counsel at Human Rights Watch, says that while the new system of Detainee Review Boards at Bagram is a significant improvement over past US practice, the US and its coalition partners need to do much more to get a functioning Afghan judicial system up and running...
ven as he sat before a panel of US military officers who would determine his fate, the prisoner - I'll call him Abdul - did not try to hide the reason he had come to Afghanistan from Pakistan. He had come to fight Americans, he said, because he had heard they were torturing Afghans, and he wanted to defend his brothers.
Shortly after entering Afghanistan in July 2009, the group Abdul was traveling with was decimated by US and coalition forces. Most of Abdul's fellow fighters were killed, but Abdul survived and was taken to Bagram, where he had been held ever since. Now, he faced a Detainee Review Board (DRB), which would determine whether he was properly detained by US forces, whether he would pose a threat to US or coalition forces if released, and whether or not he did anything that might warrant his being handed over to the Afghan government for criminal prosecution.
Abdul told the officers presiding over his DRB hearing that his time at Bagram had taught him that he had made a terrible mistake and that now he simply wished to return home to his family and lead a peaceful life. "If I get released," Abdul said through an interpreter, "I will tell everyone that they [Americans] treated me well, even though I was the enemy."
Thousands of detainees have been held at Bagram since the early days of US involvement in Afghanistan after 9/11. Under the Bush administration, detainees were initially denied access to any form of review. Then, in 2005, the military started a limited administrative review process, which it revamped in 2009. The DRBs are modeled after the Combatant Status Review Tribunals (CSRTs) previously used at Guantanamo Bay.
The Guantanamo CSRTs were hastily created in 2004 after the Supreme Court ruled that detainees at Guantanamo were entitled to a hearing to challenge the grounds for their detention. But these hearings were deeply flawed and rarely resulted in detainees being freed. Rather, they were set up to validate the president's determination that everyone held at Guantanamo was an "enemy combatant" and was properly detained.
The CSRTs did not permit the detainees to have lawyers, and although they were allowed in theory to call witnesses, no witness requested by a detainee was ever produced. Rarely was a detainee ever found not to be an enemy combatant, and when it did happen, the CSRTs were almost always repeated a second and even third time until the desired outcome -- continued detention -- was reached. Eventually, the Supreme Court ruled that the CSRTs were inadequate, and each detainee at Guantanamo is now entitled to a habeas corpus hearing in federal court.
The Obama administration asserts that detainees at Bagram have no right to habeas corpus review. That view was affirmed by a three-judge panel in Washington on May 21, which ruled that detainees captured elsewhere in the world and brought to Bagram are not entitled to judicial review in a US court. While that decision might ultimately be overturned by the Supreme Court, currently no detainee held by the US in Afghanistan has the right to judicial review.
During the Bush administration, Bagram cases were reviewed by a military panel known as an Unlawful Enemy Combatant Review Board. Those review boards were deemed by a federal judge to be even less protective of detainees' rights than the deficient CSRTs. The DRBs established by the Obama administration -- operating since September under interim guidelines -- are designed not only to review the basis for detention but also to serve as a relationship-building exercise between the US military and the local population. In March, the US military invited several international nongovernmental organizations, including Human Rights Watch, to observe the new DRBs for the first time.
The invitation to observe the proceedings was a welcome move toward increasing the openness and transparency of US detention policy. It stands in sharp contrast to the position that the administration has taken in response to a Freedom of Information Act request by the American Civil Liberties Union. While the US agreed to release the names of the detainees held at Bagram, it has refused to release other pertinent information, such as the internment serial number given to each detainee and the date and place he was captured, as well as the circumstances surrounding his capture.
Bagram has a torrid history. In the early years of the US involvement in Afghanistan it was the site of torture and abuse that resulted in the deaths of at least two detainees. But last year the US built a new prison complex and implemented vocational training programs and art and English classes, as well as the new DRBs. The new prison is sometimes called the Detention Facility in Parwan, although it is technically unnamed. The US military plans to turn over operation of the facility to the Afghan government as part of a new rule of law initiative, and wants to leave the official name up to the Afghans.
The Afghan government feels that this is long overdue, but sadly, so is the reform of Afghan detention practices. Torture in Afghan detention is still commonplace, making transfer of detainees to Afghan custody problematic under international law. Although billions of dollars have been spent on capacity building and training in Afghanistan, helping to stop torture has not been a priority for the US and other international actors.
The DRBs are intended to determine whether each detainee has been properly detained by US forces. If the military panel determines that he may appropriately be detained, there remains an additional consideration: will he pose a future threat to US or coalition forces if released? If the answer is no, the man is supposed to be set free. There is also a third option: detainees may be turned over to the custody of the Afghan government for criminal prosecution. Since September 2009, more than 80 detainees have been recommended for release, and the US government reports that the current release rate is around 50 percent. While this high release rate might be based on the new consideration of whether detainees pose a future threat, it also suggests that some of these men should never have been detained in the first place.
For those wrongfully detained, improvements in the process by which they may ultimately be released will provide little comfort. The fact is that the US is still obtaining flawed intelligence, and the wrong people are still picked up and detained. That same flawed intelligence guides "night raids" by US forces on suspected insurgent locations that in recent months have killed over a dozen civilians. Despite improved tactical directives about how the US can apprehend suspected insurgents, poor intelligence and a failure to use "soft knocks" -- which show greater respect for civilians -- continue to cost too many lives.
I observed five DRBs, and every detainee I saw that day told the review board that he had been treated well. Some may have been motivated by a desire to appear as a good candidate for release, although there have been few reports in recent years of serious abuses at the main prison at Bagram. Of course, without independent monitors who can report publicly on abuse, it is difficult to know for sure what the conditions are like. Even the human rights observers like myself, while permitted to observe the review boards, were not allowed to interview detainees. And recent reports of abuse have come from former detainees who claim to have been held at another detention site at Bagram, a detention facility the US has denied exists. It is only by reading between the lines of carefully worded US government statements that it becomes clear that there is indeed another facility at Bagram, which the US considers a transit center and not a detention facility. And so, while human rights observers watched mostly open proceedings in Parwan, a largely secret prison still operates just down the road.
Nevertheless, at the Detention Facility in Parwan, the US officers in charge seemed genuinely interested to hear my thoughts about the process, as well as those of the other NGO observers in attendance. This contrasts with the practice at Guantanamo, where NGO observers are treated as both a nuisance and a security threat. There, we are escorted by a service member at all times and must all stay together, not only in sight of the escort but often within arm's reach. (On a recent trip to Guantanamo, a colleague wanted to use a telephone that was 50 feet away in plain view. We were all forced to follow her and stand beside her so that the escort could simultaneously supervise all of us.)
The Parwan team's greater interest in engaging with NGOs is not simply a reflection of individual personalities. It also appears to reflect an increasing US government focus on Afghanistan. Guantanamo is a messy, old problem that the Obama administration is surely unhappy to have inherited, but it is only one aspect of the greater "detainee problem." Recent articles have suggested that the administration is searching for a place to detain alleged terrorists captured abroad. With the closure of Guantanamo on the horizon, Bagram may be under consideration as a possible site for future "war on terror" detentions. The administration's refusal to release additional identifying information about the detainees there -- including their citizenship -- is therefore of even greater concern. The information that the government claims is classified and protected from release under the Freedom of Information Act is exactly the same information that I heard in an unclassified DRB hearing. No restrictions were placed on my ability to take notes, and I have changed people's names here to protect their privacy, not because of any rule or requirement that restricts my ability to share that information.
Despite the high-level focus and evident dedication of the personnel involved, the DRBs remain flawed. As with the CSRTs, detainees don't have access to legal counsel. Instead, they have a military officer called a Personal Representative appointed to assist them. But they don't truly represent them - there is no lawyer-client confidentiality and no reason for the detainees to trust the US military officers. As it is, conscientious Personal Representatives are overworked -- there are 800 detainees and only 8 Personal Representatives. Although detainees can meet with family members in person or by video conference, they are unable to meet with a lawyer. And secret evidence -- unavailable to the detainee -- continues to be used in almost every case.
In the DRBs I observed, several detainees were asked why an unnamed source might have turned them in. The source's identity was classified, causing the detainee to speculate as to who in his village might dislike him enough to provide information -- false or otherwise -- to US forces. It is simply impossible for a detainee to fairly rebut the accusations against him without being able to see the evidence.
But despite the flaws, what struck me as most significant at Bagram was that the detainees had a real opportunity to tell their stories. In the five hearings I observed, each man provided a statement to the board that explained his version of the facts, and answered questions. (At Guantanamo, detainees often boycotted the CSRT hearings because they had no faith in the process.)
At most of the hearings I attended, live witnesses testified -- local or provincial elders who knew the man in question or could attest to the family support he would receive if he were released. The witnesses served two purposes. In some cases, they provided factual evidence to corroborate a detainee's story, such as one man's story that he kept explosives in his house because he sometimes breaks up rock in a nearby quarry to sell to the Provincial Reconstruction Team -- a joint military-civilian unit that assists in rebuilding the country. Some witnesses testified that they knew he tried to make extra money by selling rocks, corroborating the man's testimony. In other cases, witnesses were called to talk about the impact of a detainee's release into his community.
The US' new approach to Afghan detainees purportedly seeks to determine, among other things, whether releasing a detainee back into his community will improve perceptions of US forces among Afghans. Many of the witnesses said that a release would do exactly that. Village elders told the military officers that their communities would appreciate that their elders' views were taken into account, and respect the US for releasing someone who had been wrongly detained. In the murky Afghan conflict, where some people are the proverbial farmers by day and fighters by night, the US really does need to win the hearts and minds of the populace if it ever hopes to accomplish lasting change. But why then does it insist on hiding information about the detainees it holds outside of the Parwan detention facility, or claiming that additional identifying information about them -- the same information you are reading about here -- is classified?
My day of observing was long, and by 8 pm I was getting tired. I had already seen three detainees explain why they should be released, and I thought perhaps we would recess for the night and continue in the morning. But at Bagram, the schedule is five hearings a day, five days a week. Anything less and the US military would not be able to adhere to its schedule of biannual reviews for every detainee in its custody at Parwan.
And so the fourth detainee, who I will call Khan, entered the room, hands in shackles; he would remain shackled throughout the proceeding. A military lawyer serving in the role of Recorder presented evidence in what was supposed to be a neutral manner to a three-person panel of senior military officers. The Personal Representative attempted to defend Khan -- asking him questions that permitted him to relate his version of events -- and then Khan was allowed to make his own statement.
"Everyone, even the governor, knows me and knows I am innocent," Khan said. When questioned by the Recorder about why he had phone numbers of various people, including those believed to be associated with the Taliban, in his cell phone, Khan explained that he is a mechanic and does business with his cell phone. It appeared that Khan's nephew might be a member of the Taliban, or maybe he just shared the same name as a Taliban commander, whose number may have been in the phone. When asked about the issuse, Khan responded, "I don't know anything about that. I don't deny he is my nephew. If I had his phone number I wouldn't deny that either."
An old man from Loghar Province entered the room, called as a witness by the Personal Representative. Najib, as I will call him, an elder from the local council from Khan's region, testified that he had known Khan for fifteen years. "Does he have any enemies?" asked the Recorder. "Maybe," Najib responded. "If he didn't have any enemies, why would he be here?"
It was a good question.
Various witnesses throughout the day urged the US government to be more open with the Afghans about the people they wish to detain. One witness asked, "In the future, I hope if you want these people you will come to us and tell us. It will be easier than you coming with tanks and airplanes." Although they seemed grateful for the opportunity to attend the DRBs, the experience must have been a little like that of Alice after falling through the rabbit hole. "You helped us do jihad," said another elder. "And now you ask us why we did jihad?"
And then there was Abdul -- the young man from Pakistan who had traveled to Afghanistan to fight the people he claimed to believe were abusing Afghans. His hearing began shortly before 11 pm. I couldn't tell if Abdul was scared, tired, resigned, or all of the above, as he sat quietly while the Recorder read out the accusations against him.
Abdul's case was a difficult one. I was grateful that I was not responsible for deciding whether to detain him or set him free. Under the DRB rules, even if the review board believed Abdul planned to attack US forces, he would have to be released if he would not pose a future threat. And indeed, the review board did recommend release, and Abdul is currently awaiting transfer back to Pakistan.
The treatment of detainees in Afghanistan is still a far cry from what is required under international law during a civil war: detainees should be brought before a court, charged with a criminal offense, and tried before a court that meets basic fair trial standards. Or they should be released. The US and its coalition partners need to do much more to get a functioning Afghan judicial system up and running, but the new system at Bagram is a significant improvement over past US practice. Those detained at least had the chance to show up and be heard. And some of them, after presenting their side of the story, will be released and will go home.
Andrea J. Prasow is senior counter-terrorism counsel at Human Rights Watch. She traveled to Afghanistan to observe the Detainee Review Boards at Bagram in March.