Afghan officials seeking ability to prolong detentions

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By Rajiv Chandrasekaran
Thursday, January 27, 2011

Afghan justice and security officials want to adopt the U.S. practice of detaining suspected insurgents indefinitely without trial, according to senior U.S. and Afghan officials involved in efforts to have the government in Kabul take control of detention operations in the country.

The Afghans' embrace of prolonged detention could provoke an angry reaction from human rights advocates who say that low-level insurgents and sympathizers have been swept into an opaque system that allows only limited opportunities for adjudication and redress.

An Afghan-run system of detention without trial has yet to be approved by President Hamid Karzai, who has complained repeatedly about the U.S. policy of holding his citizens for years without civilian legal review. But senior officials of his government have voiced support for the move to achieve what they regard as an even more important goal: taking charge of detentions from the U.S.-led NATO coalition.

"Everyone should be put through a legal process, but on a case-by-case basis, there can be room" to allow for detention without trial, said a senior Afghan official close to Karzai.

The U.S. government had been reluctant to transfer more authority over detained insurgents to the Afghan government because of concern that many would be released if they were tried in criminal courts.

"We've told them we can't transfer detainee operations to you without the proper framework," said a U.S. official familiar with the process, who spoke on the condition of anonymity because he was not authorized to discuss the matter.

Afghan officials have told U.S. military officers and diplomats in Kabul that they want to make modest changes to the system that include holding more frequent reviews of each prisoner's case and possibly placing a five-year limit on detentions without trial. U.S. military officials currently review the cases of detainees every six months.

The Afghan government is also considering limiting detentions to insurgent crimes committed in the most dangerous parts of the country and exempting more stable northern and western areas.

"Everything should come into the Afghan legal framework as soon as possible, otherwise it will not be different from Guantanamo or Bagram," said the senior Afghan official, referring to two U.S.-run detention facilities - the former in Cuba and the latter at a large air base north of Kabul - where people deemed to be "enemy combatants" have been held for years without trial.

Although U.S. officials had hoped that the Afghan changes would be spelled out in a presidential decree and promulgated before parliament convened - under Afghan law, the president can make laws by fiat when the legislature is in recess - a draft decree has yet to reach Karzai.

U.S. and Afghan officials say the legal basis for continuing the detentions derives from Additional Protocol Two to the Geneva Conventions. In 2009, Afghanistan ratified the protocol, which allows a country to detain without trial people involved in an armed conflict within its borders, provided that various standards of review and humane treatment are met.

By helping the Afghans continue security detentions, the United States would play a very different role than it did in Iraq.


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