Detention: Law of

The Lingering Elements of Detention in Afghanistan: Non-Afghans and Afghan ESTs

By Robert Chesney
Monday, March 25, 2013, 3:48 PM

Ben has already noted that the United States and Afghahnistan struck a deal to resume the process of handing over the remnants of U.S. detention operations in Afghanistan--a process that hit a rough patch recently when it began to appear that Afghanistan would not after all employ non-criminal detention for certain cases and might as a result release individuals whom the United States viewed as a significant threat.  Bearing that in mind, what exactly does it mean to say that a new deal is in place?

1. It does not mean that the United States is turning over all detainees; we will continue to hold the non-Afghans

This latest agreement not surprisingly does not extend to what appear to be about three dozen or so non-Afghan detainees in US custody.  This quote (h/t: Jim White @ emptywheel) says it all:

They are not the priority of the Afghan government so the Americans can keep them for the time being. Our priority are the Afghan detainees,” Afghan Defense Ministry spokesman Gen. Zahir Azimi said.

I've long been skeptical about the practical ability of the United States to keep this limited detention regime in place, largely because of the looming drawdown and the model we have in Iraq (think Daqduq).  It is possible that the ongoing negotiations over a bilateral security agreement for post-2014 will result in a substantial lingering US ground presence so as to make continued detention of these persons in US custody possible, though I think that even then much will depend on who becomes the next president of Afghanistan.

2. It is not yet clear whether the Afghans are going to insist on using only their criminal justice system, as opposed to employing non-criminal detention.

There's no doubt that most of the Afghan detainees (apparently numbering some 4,000 persons) will either be prosecuted or released by the Afghans.  But what about the hardest cases, the several dozen individuals who are thought to be most dangerous yet for whatever reason not likely to be convicted in a criminal proceeding?  According to this account from the Times, Afghan officials have "privately" promised not to release these "enduring security threats," notwithstanding continued reluctance to accept in any formal way the existence of non-criminal detention authority.  That of course is not exactly a stable legal framework.  The Afghans may quietly embrace non-criminal detention for ESTs for the short-term, but I don't think this should be read as a long-term arrangement.