Redoing the Human Rights First Report Card V

By Benjamin Wittes
Wednesday, January 12, 2011, 11:19 PM

I am perplexed by this category and grade:

Grade: Incomplete

Due Process in Afghanistan. Following recommendations from Human Rights First, the Obama administration in 2009 made important improvements to the Detainee Review Boards, which determine whether detainees captured in Afghanistan are “unprivileged enemy belligerents” and therefore lawfully detainable. However, the detainees are not represented by lawyers and cannot see or learn of the evidence against them that is classified. Detainees are assisted by military “personal representatives” who are not trained in the law. There are not enough representatives to assist detainees wishing to meaningfully challenge their detention. The Defense Department has said that it intends to reduce military detention and justice operations by transferring detainees to the government of Afghanistan for criminal prosecution. This, along with U.S. support for development of “rule of law” operations by the Afghan government, is welcome news in light of the inadequacies of legal framework for U.S. detention. It is not clear, however, that Afghan judicial system and detention facilities are equipped to receive and fairly adjudicate these cases and assure that detainees would be protected from inhumane treatment.

The reason for my perplexity is that, as discussed here, HRF already gave the Obama administration a D for its performance in the important (in its view) task of ending indefinite detention altogether. It does not save detention at Guantanamo in the view of HRF that this detention takes place with extensive due process, federal court review, lawyers, and access by those lawyers to a great deal of classified material. Why any of this should be different because the detainee happens to be held at Bagram, rather than Guantanamo, I'm really not sure. But HRF appears here to be arguing here for doing in Afghanistan precisely what it rejects at Guantanamo. What's more, while I share the group's interest in bolstering Afghan capacity to handle detainees, I can't for the life of me imagine that the transfer of large numbers of detainees to Afghan custody will prove to be good, for, of all things, human rights. The group's message appears to be that the administration should close Guantanamo and end indefinite detention--except at Bagram, which it should turn into Guantanamo. I genuinely don't understand how the various pieces of the HRF's position on this subject fit together.

That said, I agree with the group that both the rule of law work in Afghanistan and the improvements in the detention framework there have been salutary. My only complaint with the administration on the latter front is my global complaint about the administration with respect to detention: The detention system is not in statute, and it should be. I am no expert on Afghan field operations, so I don't feel qualified to grade the administration on them--except to say that my impressions are very positive. The failure to build a long-term architecture that puts the Congress of the United States solidly behind detention operations, by contrast, is a lamentable one for which we will, I fear, someday face a reckoning.