Fixing Bagram: Strengthening Detention Reforms to Align with U.S. Strategic Priorities

Eight years after launching Operation Enduring Freedom (OEF) in Afghanistan—with a mission to kill and capture “high-value” al Qaeda and Taliban members and destroy the safe havens from which al Qaeda planned and directed the 9/11 attacks—the United States government has announced several significant detention reforms in Afghanistan. Human Rights First has closely monitored U.S. detention policies and practices since September 11, 2001. In this paper, we analyze the new detention reforms announced in September 2009 and make recommendations for further improvement in U.S. detention practices in line with U.S. policy interests and legal obligations. We base our recommendations on an analysis of the applicable humanitarian and human rights law and field visits to Afghanistan.

In September 2009, the Pentagon announced improved detainee review board (DRB) procedures for detainees being held by the U.S. military at the Bagram Theater Internment Facility (BTIF) at Bagram Air Base, Afghanistan. The Pentagon also announced reforms to both U.S. and Afghan prisons focused on rehabilitation and skills training of prisoners in order to prevent radicalization, as well as an assessment on evidentiary gaps that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts. These reforms reflect an understanding on the part of the Obama administration that the role of detention must be carefully calibrated to provide optimal protection to U.S. troops and to the Afghan population, while at the same time, minimizing the risk of alienating the very population U.S. troops are there to protect.  Time will tell whether these reforms will be implemented effectively and can resolve the underlying problems of arbitrary and indefinite detention, mistaken captures, and lack of evidence for legitimate prosecutions in Afghan courts.

General Stanley McChrystal, Commander of U.S. Forces-Afghanistan (U.S.FOR-A) and the International Security Assistance Forces (ISAF), in his August 2009 assessment on Afghanistan stated that:

Detention operations, while critical to successful counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF. With the drawdown in Iraq and the closing of Guantanamo Bay, the focus on U.S. detention operations will turn to the U.S. Bagram Theater Internment Facility (BTIF). Because of the classification level of the BTIF and the lack of public transparency, the Afghan people see U.S. detention operations as secretive and lacking in due process. It is critical that we continue to develop and build capacity to empower the Afghan government to conduct all detentions operations in this country in accordance with international and national law.

The detention reforms initiated by the Obama administration appear to fit within the “integrated civilian-military counterinsurgency strategy in Afghanistan” announced by President Obama on March 27, 2009 to “integrate population security with building effective local governance and economic development” and “establish the security needed to provide space and time for stabilization and reconstruction activities.”

The emphasis on security for the Afghan population is essential to build and maintain support for American military presence and to marginalize support for insurgents. A 2009 ABC News poll found that only 37 percent of Afghans say they support Western forces, down from 67 percent in 2006. The poll data is consistent with the conversations Human Rights First had with former prisoners detained by the U.S. military in Afghanistan at Bagram Air Base, Afghan civilians, and government officials. Those we interviewed, although not supportive of the Taliban or other insurgent groups, repeatedly cited as reasons for the decline in support civilian casualties, arbitrary detention and ill-treatment, intrusive house searches, the use of dogs against villagers, failure to admit and compensate for losses resulting from personal and property damage as well as from wrongful detention, and cultural insensitivities. Such conduct undermines the cooperation of civilians with the Afghan government and international troops and sends a message that foreign troops are at war with, rather than assisting, the Afghan people.

Under current ISAF counterinsurgency rules, foreign military forces, including U.S. forces that are part of the ISAF mission, must transfer detainees to Afghan custody within 96 hours. In contrast, under the OEF counterterrorism mission detainees captured by U.S. forces are transferred to Bagram for long-term detention, subsequently released, and since 2007 are transferred to Afghan custody for criminal prosecution in the U.S.-built Afghan National Defense Facility (ANDF) in Pul-e-Charkhi prison.

There are approximately 600 individuals being held in long-term detention by the United States in the Bagram Theater Internment Facility. Most are Afghans, but a small number are non-Afghans, including some who were captured outside Afghanistan and rendered to Bagram for detention. The BTIF will be replaced with a new theater internment facility in 2009.

In April 2009, Human Rights First interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S. military not to be a threat to U.S., Afghan or Coalition forces. Some detainees we interviewed had been detained for five years, others from four months to two years. According to those we interviewed in April, prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers. Detainees were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.

In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from U.S. to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS), years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses, no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.

Human Rights First submitted its findings and recommendations to the Pentagon’s Office of Detainee Affairs, U.S. Central Command (CENTCOM), and the President’s Special Task Force on Detainee Disposition, created by Executive Order on January 22, 2009, which was tasked to identify “lawful options . . . with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” In May 2009, at the time of our submissions to the government, we were aware that the Pentagon was revising detainee review procedures in Bagram and that broader detention reforms in Afghanistan were being considered. (For a detailed examination of our findings and recommendations see Human Rights First, Undue Process: An Examination of the Detention and Trial of Bagram Detainees in Afghanistan in April 2009 (2009)).

Under the newly announced DRB procedures, detainees will have improved notification procedures, the ability to attend the hearings, call witnesses that are “reasonably available” and question government witnesses, and have a personal representative to assist them during the proceedings. If properly implemented, these procedures will certainly be an improvement over the quality of process afforded to Bagram detainees under the previous Unlawful Enemy Combatant Review Board (UECRB) procedures. On the other hand, similarities between the DRBs and the discredited Combatant Status Review Tribunals (CSRTs) in Guantanamo are cause for concern.  Specific problems with the CSRTs that may also arise in the DRBs involve enforcement of detainees’ entitlement to exculpatory information and their ability to review and challenge the evidence against them and produce their own evidence, including witnesses, all in the absence of entitlement to legal representation or independent review of their detention. It thus remains to be seen whether these new procedures go far enough to protect against arbitrary detention while also creating a sound evidentiary basis for fair prosecutions.

We are mindful that the United States, along with NATO allies and the Afghan government, is engaged in armed conflict with insurgent groups in Afghanistan and that detention is an element of armed conflict. But the United States should take additional steps to ensure an end to the arbitrary detentions that have undermined its counterinsurgency goals. U.S. counterinsurgency doctrine recognizes the benefits of consent from, and the need for cooperation of, the local population. A key determinant of that consent and cooperation is the degree to which the Afghan people view detention practices as fair, humane and beneficial to their security, and as progressively achieved through their own institutions. Reforms that accomplish these goals will deprive al Qaeda and the Taliban of the propaganda and recruiting opportunities created by unjust policies and practices.

Human Rights First urges further reforms to:

• ensure that U.S. detentions are on a sound legal basis;
• reduce the risk of arbitrary detentions by providing detainees a sufficient way to challenge their detention and improving evidentiary procedures at capture;
• increase the transparency in U.S. detention operations;
• increase the capacity of the Afghan authorities to handle detentions on their own; and
• strengthen the fairness of Afghan criminal prosecutions of those captured by the United States.

Our recommendations to accomplish these reforms are outlined in detail at the end of this policy paper.