Detention: Operations in Afghanistan

Unwinding Detention in Afghanistan Hits a Rough Patch

By Robert Chesney
Saturday, March 9, 2013, 11:27 AM

I've posted many times on the gradual but inexorable process through which the United States is closing out its detention operations in Afghanistan, including this recent update.  It has been a bumpy road, and after President Karzai recently suggested that he would quickly release certain detainees once able to do so, it not surprisingly has gotten bumpier.  The New York Times explains:

In September, when the accord called for the full transfer to the Afghans, the Americans boycotted a transfer ceremony and canceled the transfer of all prisoners to the Afghans because the two sides could not agree on how to handle the releases. The Americans wanted the prisoners held without trial indefinitely, and the Afghans insisted on holding trials for them.

But last month Mr. Karzai met with President Obama in Washington, and American officials said they had been assured that the Afghans would hold some of the prisoners without trial. Mr. Karzai’s remarks on Wednesday cast doubt on whether the two sides had really reached an understanding on the issue.

A few things to bear in mind:

1. Note that this dispute centers, so far as I can tell, entirely on the Afghan detainee population.  This is important, but don't forget that there is a small non-Afghan population as well--foreign fighters for whom the United States may have a more serious interest in ensuring lasting incapacitation.  This presents a serious Daqduq problem, just as occurred in Iraq previously.

2. As to the Afghan detainees: I suspect there a lot of the coverage of this development will proceed from the assumption that the United States is not honoring its agreement.  But it may be that Afghanistan breached the agreement first, by failing to establish a non-criminal administrative detention system as it represented in the agreement that it had already done or was going to do.

3. Congress and the non-Afghan detainees:  Don't forget that Congress in the most recent NDAA imposed a notice-to-Congress requirement before such detainees can be transferred out, and also that it required DOD to produce a recidivism report relating to such detainees (due in a month or so, I believe).