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.
As U.S. combat forces withdrew last year and control over detainees was handed over to the Iraqis, the Baghdad government opted to release any inmates who could not be put on trial. The U.S. government was willing to accept that outcome because the conflict was deemed by senior officials to be waning - as opposed to the situation in Afghanistan - and Iraq's legal system has a far greater capacity to conduct investigations and trials than Afghanistan's.
The willingness to continue security detentions could upset some Afghans, who view the practice as an extension of extrajudicial measures employed during the Soviet occupation and under Taliban rule, but Karzai government officials are hoping that the ability to take control of the process, which will allow Afghans to vet fellow Afghans, will assuage those concerns.
U.S. officials said they have not pressured the Afghan government to embrace security detentions as the only to way address shortcomings in the country's criminal law. "We've been agnostic," said a senior U.S. official who is close to the discussions.
Officials at the U.S. Embassy in Kabul and Task Force 435, a U.S.-run military team that handles detentions, told the Afghan government that it would have to address provisions in its criminal code that could make it difficult, if not impossible, to put many detainees on trial. Among the elements that prompted concern are a requirement that suspects be arrested by Afghan law enforcement officers, that they be indicted within 72 hours and that they be tried within two months. Afghan law also states that suspects need to be tried and incarcerated in the province where they committed their crime - a provision that could be tough to fulfill in strife-torn southern and eastern parts of the country.
There are about 1,400 detainees at a large, U.S.-run detention facility in Parwan province whose arrests have not involved Afghans, the senior American official said. If those individuals were brought in front of a judge, they could be released, the official said.
"Right now, if we turned them over to the Afghans tomorrow, they'd be in a position under their laws and their constitution that they may be released," the senior official said.
But even if those requirements were modified, U.S. officials said, it would be very challenging to try the detainees, because most were apprehended as a result of intelligence tips, which may not be admissible in court, or in combat situations, where it is not always possible to collect the forensic evidence needed for prosecutions.
Vice Adm. Robert Harward, the commander of Task Force 435, said at a Nov. 30 Pentagon news conference that about 5,500 people had been detained in the first 11 months of 2010. Of those, about 1,100 were sent to the detention facility in Parwan. The rest were turned over to Afghan authorities or released.
Harward said the facility, which can hold 1,650 detainees, is being expanded to house 3,200.
Gen. Stanley A. McChrystal, the former top coalition commander in Afghanistan, pledged in June 2010 that U.S. forces would "hand over all detention operations" at Parwan to Afghans by January 2011. The U.S. officials said they could not speculate when a full handover would occur, but they said a detentions decree from Karzai was a critical prerequisite.
As an interim step, U.S. officials last week transferred limited responsibility for one of the four housing units at the facility to the Afghan government. But the Afghans, the senior U.S. official said, do not yet have the authority to decide which inmates in that unit can be released.