Detention & Guantanamo

Afghanistan May Release Hundreds of Detainees Transferred from US Military Custody

By Robert Chesney
Saturday, November 9, 2013, 8:12 PM

The unwinding of US detention operations in Afghanistan continues.   The latest development concerns the population of some 880 Afghan detainees whom the United States has transferred to Afghan control as part of the drawdown process (the United States continue to hold a smaller population of non-Afghan detainees, the long-term disposition plan for which is unclear to say the least).

The decision to turn these men over to Afghan custody appeared at the time to be premised in part on the understanding that Afghanistan would be willing to employ non-criminal, law of war-based detention in some of these cases, rather than depending entirely on Afghanistan's emergent criminal justice system.  Or at least that seemed to be part of the US understanding; Afghan officials all along have appeared reluctant to take such a step, and now it's becoming clearer that Afghanistan will stick with the criminal justice option standing alone.

None of which is really news.  What is news is that we now have some data on what the practical result of all this will be.  According to the Washington Post this morning, Afghan authorities have completed a screening process for 461 of the 880 Afghan detainees, and have decided to try prosecution in only 77 of those of those cases; the rest will be released.   This is perhaps inevitable given the circumstances in which most if not all these persons were captured (military operations that were not designed to facilitate a subsequent criminal prosecution), and also bearing in mind the substantive and procedural differences between the U.S. military's detention system and the Afghan criminal justice system.  And it could well be the right result in many of these cases; I'm certainly in no position to judge.  But perhaps the most significant lesson here concerns the looming question of what to do with the non-Afghan detainees who remain in U.S. military custody there:  to the extent that the United States wants to prioritize keeping at least some of those individuals off the streets, transfer to Afghan custody is not a promising option (not that the Afghan authorities are particularly eager to have custody of these persons).