On New Year's Eve the New York Times reported that the Karzai Administration has given preliminary approval for the release of 88 Afghan detainees who were once held in US custody in Afghanistan and who were transferred (along with hundreds of others) to the control of the Government of Afghanistan as part of the larger process of unwinding US detention operations in Afghanistan. The U.S. military is unhappy about this most-recent development, to say the least, and here is why:
From the beginning, the terms of the transfer deal have been subject to debate and uncertainty, with the US side early on insisting that Afghanistan was supposed to embrace an option for non-criminal military detention as a part of the agreement, whereas the Karzai administration insisted instead that the detainees would all have to be either prosecuted or released. There does not appear to be any real prospect of Afghanistan embracing law of war detention at this stage, but that does not mean that the time for debate is over. There are two new bones of contention: (i) whether the Afghans are serious enough about at least attempting the criminal prosecution option for these detainees, and (ii) whether the Karzai administration is obliged by the agreement not to carry through on a release over objections like this.
As to the question of taking the prosecution option seriously: According to the Times, U.S. military sources say there is ample evidence to try most of these particular detainees for involvement in attacks on US, coalition, and Afghan forces (and that time should be given to develop more evidence if Afghan prosecutors do not agree). The Karzai administration, however, reportedly claims there is no evidence supporting prosecution in these cases. I'm in no position to judge the matter, of course, though I do note that the story in the Times givens the example of a detainee was caught in the act of planting an IED (and was linked by biometrics to other bombs). More disturbingly, the Times also quotes unnamed Afghan officials claiming that the entire affair is being orchestrated by Karzai's Chief of Staff in order to further undermine the ongoing security agreement negotiation.
There are some lessons here for future overseas deployments. Overseas detention operations do not last perpetually when hosted on foreign sovereign territory, and the control the US exercises in such cases declines over time in accordance with US progress towards withdrawal. In cases of detainees linked to specific criminal acts as to whom the US wants to ensure long-term incapacitation or punishment, it is best to act sooner rather than later in seeking to ensure a prosecution (by us or by the host country) rather than simply resting on the current availability of military detention (assuming, of course, that there clearly are both proper charges and sufficient evidence available to us now (or previously) in any of these cases).
As for the here-and-now? Long-term military detention no longer is an option as to Afghan citizens at least, and there is now increasing doubt about the reliability of the Afghan criminal prosecution alternative. This is not a combination that bodes well for a continued US ground presence, which may of course be the point of this development (as the Times article suggests).
For more on the long and evolving story of detention ops in Afghanistan, see here.