U.S. Contributes to Afghan Fair Trial Violations

NEW YORK, April 10, 2008– The United States government contributes to violations of fair trial standards in Afghanistan by failing to provide sufficient evidence in the prosecution of former Bagram and Guantánamo detainees now being tried in Afghan courts, despite its substantial investment in an international effort directing the reform of Afghanistan’s justice sector, a new report finds.

The report, Arbitrary Justice: Trials of Guantánamo and Bagram Detainees in Afghanistan, released today by Human Rights First, examines the process by which more than 250 Afghans formerly detained by the United States at Guantánamo and Bagram have been transferred to the Afghan government for prosecution. These detainees are being held for trial at Block D of the Pul-i-Charkhi prison, outside Kabul, which was built by the U.S. government. Based on exclusive trial observations and first-hand interviews with judges, prosecutors, defense lawyers, a former Block D defendant, and family members of detainees in Kabul, the report describes how the detainees are being charged and tried by the Afghan government “based on allegations, but little else, provided by the United States.”

“The United States has turned over the prosecution of Afghan Bagram and Guantanamo detainees to the Afghan criminal courts, but has consistently failed to provide sufficient evidence to support the allegations of criminal activity necessary for fair trials, said ” Sahr MuhammedAlly, the report’s author and a senior associate in Human Rights First’s Law and Security program.

The so-called “evidence” being used to prosecute the repatriated detainees violates international fair trial standards and, in many cases, Afghan law, the report finds. The U.S. government provides the Afghans with “highly general” declassified versions of the Detainee Assessment Branch Reports of Investigation (ROIs), which form the basis of the Afghan charges. Typically, these ROIs state the date of capture, the capturing force and what the detainee was alleged to have done. Absent, however, is real evidence, such as the names of individual witnesses or statements in the court dossier—sworn or unsworn—of any U.S. soldiers or officials involved in the capture or interrogation of the detainee.

In the trials witnessed by Human Rights First, and in all of these trials, according to defense lawyers interviewed by Human Rights First, there are no prosecution witnesses called to testify or even sworn witness statements submitted by the prosecution, and there is little or no physical evidence. The trials are conducted based on the in-court reading of investigative summaries prepared by U.S. and Afghan officials which purportedly support the allegations. “These no-witness, little to no evidence, paper trials deny the defendant the fundamental fair trial right to challenge the evidence and mount a defense,” said MuhammedAlly.

More than 160 Block D cases have been referred for prosecution thus far, while the charges against the rest have not yet been finalized. Charges under Afghan law range from the destruction of government property to treason and threatening the security of Afghanistan. Trials last from 30 minutes to an hour, according to personal observations of trials cited in the report and in-person interviews with Afghan officials and defense lawyers involved in these trials. Since the trials began in October 2007, 65 former U.S. detainees have been convicted and sentenced to either time-served or imprisonment ranging from 3 to 20 years, while 17 have been acquitted.

In interviews conducted with numerous defense attorneys and judges, the report finds that efforts to challenge evidence—or the lack of evidence—during trial are routinely dismissed by the judges, if acknowledged at all. One defense counsel, cited in the report, states that when he has questioned the validity of the evidence during trial, the standard response of Afghan judges has been, “Why would the Americans detain him then? The U.S. has nothing against this person unless he’s guilty.”

Also of concern, the report finds, is the possibility that statements that were the product of abuse of detainees while they were in U.S. custody—a practice documented by government, human rights and press reports—could inform the content of the files the U.S. government provides to the Afghan government.

Coerced evidence is inherently unreliable. The Afghan Constitution explicitly prohibits the introduction into evidence of statements obtained “by means of compulsion” and “recognizes a confession as voluntary only if taken before a judge.” Likewise, international law prohibits the use of evidence procured by torture, or by cruel, inhumane or degrading treatment, in all legal proceedings.

“Whether evidence was obtained through coercion or not is nearly impossible to prove, given the lack of accountability in the Afghan courts, and the impossibility of tracing the information to its source” said MuhammedAlly.

The trials of the Block D detainees began in October 2007 under a classified agreement reached two years earlier by the Afghan and U.S. government to transfer Afghan detainees in U.S custody to the Afghan government.

The United States is one of the largest donors to an international effort to reform Afghan’s courts and other justice sector institutions. “If the United States is committed to the worthy project of helping Afghanistan achieve rule of law, it must not encourage flawed criminal proceedings that are taking place solely because the United States accuses Bagram and Guantanamo detainees of wrongdoing, ” said MuhammedAlly.

The report calls on the U.S. and Afghan governments to take steps to ensure that prosecutions of these former U.S. detainees in Afghan courts are legitimate, and puts forward a number of recommendations.

The United States should make relevant witnesses available to assist in criminal prosecutions. The U.S. government has already put in place such a system in Iraq, where U.S. soldiers appear as witnesses and U.S. judge advocates train soldiers and marines in collecting evidence for criminal prosecution in Iraqi courts.

“The concept of providing U.S. soldiers and witnesses in such cases is not novel,” added MuhammedAlly. “The United States has alleged criminal activity by these detainees justifying detention for years. As the detaining and interrogating power it should provide evidence to support the allegations,” she said. “And the Afghan government has the clear legal obligation under Afghan and international law to require that persons convicted of crimes under Afghan law in Afghan courts be convicted on the basis of evidence.”

The Afghan government should comply with the Afghan criminal procedure code and international fair trial standards, including to require in-court witness testimony and allow the defendant the ability to challenge the evidence. “These detainees have been imprisoned by the U.S. for years without charges. They deserve to have their fates resolved in fair proceedings,” said MuhammedAlly.