But U.S. officials decided that the Afghan legal system is still too weak to permit the handover of the Parwan Detention Center, even after the United States spent millions attempting to improve the country’s judiciary. The United States will now be unable to relinquish authority at Parwan until at least 2014, just as the last foreign troops are scheduled to leave Afghanistan.
“At this point, the Afghans don’t have the legal framework or the capacity to deal with violence being inflicted on the country by the insurgency,” said one U.S. official, who spoke on the condition of anonymity to discuss a sensitive matter.
The existence of the U.S. military prison near Bagram Airfield, about 30 miles north of Kabul, has long been seen by Afghans as a sign of imperial overreach, and it has been singled out for criticism by President Hamid Karzai.
The U.S. military has detained suspected insurgents at facilities in the area for nearly a decade. Most have been kept without trial, with less than a third of the prison’s detainees having been handed over for prosecution to an Afghan-run court.
The prison population has grown rapidly as the U.S. military has expanded its operations in Afghanistan: Military officials say that over the past three years, the number of detainees has tripled. Parwan now holds 2,600 inmates, ranging from high-profile insurgents to those who have played a more peripheral role in the conflict.
The transfer of the prison — an agglomeration of cinder-block rooms and cellblocks built in 2009 to replace an older, dilapidated facility — was supposed to be part of a broader transition to Afghan control that began this summer. Seven cities and provinces have been formally transferred to Afghan security forces in the past month.
A transition at Parwan was expected to hold special symbolic value: Afghan defense officials argue that the Taliban has successfully used the prison for propaganda to galvanize insurgents, drawing on reports of harsh interrogation methods. An Army investigation into the deaths of two detainees in 2002 uncovered evidence of prisoners being chained to the ceiling by their wrists, and being severely beaten by guards.
“There’s no question that taking control and bringing these courts within Afghan law will be a significant step,” said Mohammad Qasim Hashimzai, the deputy minister of justice.
But as the number of detainees at Parwan continues to grow, U.S. officials say that giving Afghans control over the fates of suspected insurgents would allow dangerous Taliban fighters to slip through the cracks of an undeveloped legal system.
The inability of Afghan judges to handle classified intelligence is one of many problems delaying Parwan’s handover, according to U.S. officials who say they would be willing to share such information if the proper Afghan procedures existed. The Afghan legal code — crafted in 1976, during a time of relative peace — lacks the capacity to deal with the demands of wartime criminal justice, officials said.
Detainees must be indicted within three days of being arrested. Forensic evidence is rarely considered. And the accused must be tried within the province where he is apprehended, even though many provincial courts are notoriously corrupt and insecure.
To develop judicial capacity in Parwan and beyond, the United States has helped train a slew of Afghan judges and lawyers, aiming to develop institutions that have long languished because of political gridlock and a lack of funding.
Efforts to address the shortcomings of the legal code in parliament or through a presidential decree have stalled, even though some of the country’s top legal advisers acknowledge the need for reform.
Some Afghans, including Karzai, remain eager to expedite the transition process at Parwan and could still push for an earlier transfer than 2014. But U.S. officials say significant reforms would have to be in place before such a handover could occur.
Other missed deadlines
This is not the first time the United States has missed a deadline related to Parwan’s transition. Gen. Stanley A. McChrystal, then the top U.S. military commander in Afghanistan, pledged in June 2010 that U.S. forces would “hand over all detention operations” at Parwan to Afghans by January 2011.
But the transfer of judicial operations has proven even more challenging. Top Afghan and American officials agreed in a public memorandum last year that Afghans should expect to assume responsibility for Parwan’s courts as well as its security in January 2012, with the caveat that the timeline was subject to “demonstrated capacity.” In retrospect, U.S. officials said, that transition date was also too ambitious.
News that the country’s largest prison will remain in American hands until at least 2014 has been bitterly received by some.
“This is our country. We have our own laws. The process at Parwan should be an Afghan process,” said Fareed Ahmad Najeebi, the Justice Ministry’s spokesman. “We might have some technical problems with our penal code, but we’re ready to take over judicial and detention operations.”
The Afghan-run court at Parwan is growing, albeit slowly, and is now hearing about 50 cases a month. Despite its flaws, it marks a significant improvement over the rest of the country’s courts. About 150 of Afghanistan’s 398 districts lack judges, and threats and bribes lead to the manipulation of verdicts in many courts.
Among the Afghan proposals to reform the legal system is the development of a national security court that would adopt the U.S. practice of detaining suspected insurgents indefinitely without trial.
U.S. and Afghan officials say the legal basis for continuing the detentions derives from a provision of the Geneva Conventions that allows combatants to be held without trial, as long as standards of review and humane treatment are met. The advocacy group Human Rights First argued in a report published this year that Parwan’s U.S.-military-run detainee review board “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.” U.S. officials reject that assertion.
Earlier this month, during a typical review board hearing — which includes no lawyers or judges — three U.S. military officers sat in front of a slim, bearded detainee who pleaded with cuffed hands for mercy.
“I am not Taliban,” he said in his native Pashto. “I am a farmer. This is all a mistake.”
But the officers were looking at classified intelligence that said otherwise, labeling the man a “Taliban facilitator” from Kandahar. Now the board had to decide: Could an Afghan court be trusted to handle his case, or would he be detained without a trial?
Because the evidence is largely classified, the three officers said they could not risk handing him over to local judges.
The suspect was escorted to a wheelchair used to transport detainees and pushed back to his cell. He will be questioned by another review board in six months, and the decision will be reassessed.
Staff researcher Julie Tate in Washington contributed to this report.