Detention: Law of

Detention in Afghanistan: How Much Control Does the US Still Have?

By Robert Chesney
Thursday, June 7, 2012, 11:54 AM

As both Wells and Ben noted previously, there are renewed signs of interest in the fate of military detention in Afghanistan, in the form of an NPR story by Quil Lawrence and an order that same day from Judge Bates relating to the Afghanistant habeas litigation.  The NPR story is quite interesting, on dimensions pertinent to the attempt to establish habeas for detainees in Afghanistan--though the message it sends is mixed.  On one hand, the story questions whether the transfer of the DFIP to Afghan control really means much given that the facility is located on an airbase as to which the US maintains overall control [CORRECTION: THE DFIP IS NOT "INSIDE THE WIRE" IN THIS SENSE, BUT RATHER IS--BY DESIGN--ACCESSIBLE WITHOUT TRANSITING THE AIRBASE].  On the other hand, the story also flags the concern that the Karzai administration is going to begin releasing detainees from the facility for purely political purposes in the runup to the next round of elections.  The latter point seems more telling to me, suggesting that transfer of control is quite real indeed.  But forget about the habeas question for a moment.  The big issue really isn't whether a US federal judge will order releases, but instead whether Afghan authorities will simply abandon military detention in favor of criminal prosecutions in their (still-emergent) criminal justice system.

The key question is whether Afghanistan has at last embraced, however quietly, the propriety of using non-criminal detention for insurgents.  The transfer agreement explicitly provided that it would do so (for background, see my prior posts here and here), yet as Kate Clark notes here, Afghan officials don't exactly broadcast this in their public statements.  So what is going on?  It seems to me that aim of the Karzai government is to minimize its exposure to domestic political criticism (and perhaps also diplomatic pressure from others) that might follow from a too-public embrace of non-criminal detention, while nonetheless creating such a system (because that was simply required by the US as a condition of turning over the DFIP, because they appreciate that they need such a system given the ongoing NIAC and the relative weakness of their criminal justice sytsem, or both).

But, you might ask, are the Afghans actually employing non-criminal detention?  It sure sounds like it, according to a separate post by Clark.  See here for a pretty detailed description of a system that appears to highlight the option of criminal prosecution when reasonably available, but that plainly retains the military detention option--as well as an ongoing voice for the US in the slotting process.  Clark depicts the US voice in the process as a veto, though it's not clear to me from her post that this is the functional or formal reality.  The point no doubt will be the subject of further discovery and debate in the Afghan habeas litigation....