NEW REPORT: Improvements to U.S. Detention Practices in Afghanistan Necessary to Protect U.S. National Security

WASHINGTON – More than 1700 prisoners currently detained by the United States in Afghanistan do not have the right to see evidence being used against them or the right to legal representation in breach of the minimum standards of due process required by international law, a new report finds. The findings, released today by Human Rights First, come as the number of detainees held at the United States’ Bagram Air Base surpasses 1,700 – almost triple the number held by the Bush administration and around 10 times the number of prisoners at Guantanamo. The detainees at Bagram are, in fact, afforded far fewer rights than are those at Guantanamo, who have the right to challenge their detention in a US court and to representation by a lawyer. “Some detainees at Bagram have been imprisoned for eight years or more without charge or trial, based largely on evidence they have never seen and with no meaningful opportunity to defend themselves,” according to the report. “The current system of administrative hearings provided by the U.S. military clearly violates international laws prohibiting arbitrary detention, and flies in the face of the well-founded wisdom of our top military leaders in the region who have warned repeatedly of the dangers of denying Afghan detainees due process.” said Human Rights First’s Daphne Eviatar, who drafted the report following a recent investigative trip to Afghanistan. “Beyond the imprisonment of many likely innocent people, the lack of due process erodes support for U.S. forces in Afghanistan and ultimately undermines U.S. goals there.” The report cites statements from General David Petraeus, Commander of the NATO International Security Assistance Force in Afghanistan and his successor General Stanley McChrystal that applying minimum international legal standards of due process will bear heavily on the successful achievement of US objectives, including building the long-term capacity of the Afghan government to uphold international law. Major General Douglas Stone warned after investigating US detention practices in Afghanistan in August 2009 for the US Central Command that detaining moderate Afghans risks transforming them into radicals. The report– “Detained and Denied in Afghanistan: How to Make U.S. Detention Comply with the Law” –is based on the observation by Human Rights First of hearings given to detainees by the U.S. military in Sept. 2010 and Feb. 2011, as well as an Afghan trial supported by the U.S. military in February. In addition, HRF conducted interviews with 18 former detainees, all of whom had been released from U.S. custody within the previous year. This report follows up on Human Rights First’s earlier report, issued two years ago, on US and Afghan detention practices in Afghanistan. According to today’s report, there have been a number of improvements over the past two years, since the suspension of the Bush administration’s completely secret detainee assessment process. For example, the Obama Administration now allows detainees to attend at least a portion of a hearing and address a board of U.S. military officers examining their case. Each detainee is now assigned a “personal representative” to help present the case and is entitled to a new status hearing every six months. The military has also implemented some of the recommendations that Human Rights First made in its last report, such as:

• Allowing human rights organizations to observe hearings;
• Excluding evidence obtained through torture or cruel, inhumane or degrading treatment;
• Embarking on efforts to improve the prosecution of national security detainees in Afghan courts.

Even so, Human Rights First’s on-the-ground research in Afghanistan revealed that the current detention system remains plagued by failures to comply with international law. Case examples drawn from this research are featured in the report to underscore Human Rights First’s key findings:

• The current U.S. detention policy in Afghanistan does not provide detainees the minimum level of due process required by international law, including the right to see and effectively challenge the evidence, and to have their rights determined by an independent authority, empowered to order release.
• While the U.S. military has a legitimate need to protect intelligence sources and methods, the heavy reliance on secret evidence to determine whether a detainee meets the criteria for continued detention is unacceptable and does not meet the minimum requirements of due process – a practice that is counterproductive to the U.S. mission in Afghanistan because it encourages hostility toward U.S. forces.
• The DRB’s lack of authority to order a detainee’s release represents a serious shortfall in due process, one that leaves the process open to arbitrary delays and the possibility of political interference. This undermines both the legitimacy of the board’s proceedings and the ability of detainees to meaningfully challenge their detention.
• There is a lack of compensation – or even an official apology – for wrongful detention, theft or damage to property.
• The responsible transition of detention authority to Afghan control is critical to the future stability of Afghanistan, as well as to U.S. national security interests in the region. To help the Afghan government meet basic standards of due process will require a lasting commitment on the part of the U.S. government, working in coordination with other donor nations.

Today’s report documents in detail the basis for each of these findings and puts forth a series of recommendations designed to tackle these detention reform objectives. Recommendations include providing detainees with legal representation, and reducing the reliance on secret evidence at their hearings. Human Rights First also recommends that as the U.S. withdraws troops from Afghanistan, it maintain its commitment to civilian assistance for development of the rule of law. “Even after the United States withdraws the bulk of its troops from Afghanistan, ongoing support for its fledgling justice system will be necessary, and critical to the country’s stable development,” Eviatar concludes. “Human Rights First urges the United States government to take a long-term view of the problem and to commit to civilian assistance for Afghan judges, lawyers and legal institutions far into the future.”