A few years ago I wrote a paper about the cycle of detention law and policy over time in Iraq, and among other conclusions I observed that the sustainability of overseas, US-administered detention facilities established in the context of a large-footprint combat deployment is inextricably linked to the sustainability of the underlying deployment itself–and that sooner or later the same cycle would unfold in Afghanistan as previously unfolded in Iraq (up to and including Daqduq-type questions about the fate of persons whom we would wish to hold even after a withdrawal of forces). That cycle has been unfolding all year, though not very smoothly. As part of the agreement, Afghanistan had appeared to embrace the need to establish its own non-criminal detention system, but in actual practice seems not to have followed through, relying instead exclusively on its embryonic capacity for criminal prosecution as the sole Afghan-administered disposition option for insurgents transferred from American to Afghan control pursuant to the MOU. And therein lines one of two big problems.
First, as a growing number of detainees are put through the Afghan process and acquitted, the US is facing a dilemma as to whether to go ahead and release the men. According to Rod Nordland’s story in the Times today (hat tip: Ritika), as many as 57 detainees are in this position. These are, I suspect, persons whom the US has determined can be held under color of the law of war as we continue to fight the Taliban and its co-belligerents in Afghanistan, yet who could not be convicted (for whatever reason) in an Afghan court. It seems tension has been building as the US refuses to release these men, and now President Karzai has upped the ante with a statement denouncing the US for violating the aforementioned MOU and directing a complete Afghan takeover of the Parwan facility.
Second, the Nordland story also illustrates another point of tension. The US position appears to be that the MOU’s transfer provisions concerned only the incumbent detainee population, not the steady stream of additional detainees captured by U.S. forces this year. Nordland’s story indicates that negotiations have been underway to figure out whether and how to extend the MOU’s approach to this new detainee stream, but that these talks are stalled in light of the wrangling over issue #1, above.
It may be that this is all posturing for purposes of negotiating leverage, as the focus begins to shift toward negotiation of the Status of Forces Agreement that might govern U.S. involvement in Afghanistan beyond the date of the 2014 “withdrawal.” Indeed that is surely at least part of what is going on here. But let’s not loose sight of the fact that there is only so much the Afghanistan criminal justice system can manage at this stage in its development. If the Afghans will not follow through on military detention administered by them, nor allow the U.S. to administer it, hard questions will arise as to how if at all to continue U.S. combat operations there. Ah, but you might say, this is really only an obstacle for detention and interrogation activities, not the use of lethal force. Fair point. In this recent piece, I pondered the possibility that U.S. involvement in Afghanistan beyond 2014 may well look a lot like our current involvement in Yemen. These latest developments strike me as likely to move us further along that track.
There is a third issue, by the way, intermixed with the two I note above: the fate of non-Afghan detainees who currently are in U.S. hands. Those cases are the most analogous to Daqduq, in terms of the diplomatic complexities, though I don’t know enough about their underlying fact patterns to say with any confidence how significant any of them may ultimately prove to be. One hopes for a better outcome this time around, at any rate.