Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:
The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.
The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.
The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.
The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:
But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.
As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: Continue reading
When it comes to building policy around Afghanistan, the Obama administration is an endless fount of ideas with colossally ugly optics mixed with untenable legal positions. The latest brilliant offering from them is a beauty:
The Obama administration is actively considering the use of a military commission in the United States to try a Russian who was captured fighting with the Taliban several years ago and has been held by the U.S. military at a detention facility near Bagram air base in Afghanistan, former and current U.S. officials said.
Wait. He was “fighting with the Taliban”? Doesn’t that make him a standard combatant and traditional prisoner of war? Here is more of what the Post has on his history:
The Russian is a veteran of the Soviet war in Afghanistan in the 1980s who deserted and ended up fighting U.S. forces after the Sept. 11, 2001, attacks. U.S. officials said the man, thought to be in his mid- to late 50s, is suspected of involvement in several 2009 attacks in which U.S. troops were wounded or killed. He was wounded during an assault on an Afghan border post that year and later captured.
Little else is known about him except for his nom de guerre, Irek Hamidullan.
No. Still nothing in this description that distinguishes Hamidullan from any other non-Afghan teaming up with the Taliban to take on US forces there. And yet, the military seems to think that their “case” against Hamidullan is among the strongest against the 53 non-Afghan prisoners the US admits to housing at Parwan:
Military prosecutors have examined the evidence against Hamidullan and consider the case among the strongest that could be brought against any of the foreigners held at the Parwan Detention Facility near Bagram.
“He’s pretty well-connected in the terrorist world,” said one official with firsthand knowledge of the case. Hamidullan is thought to have links to one or more insurgent groups and ties to Chechnya, a part of the Russian Federation where rebels have fought two unsuccessful wars for independence.
Officials said Hamidullan remains committed to violent jihad and has sworn that he will return to the battlefield if he is released from prison. U.S. officials said that they have discussed the case with Moscow but that the Russians displayed little or no interest in his return. The senior official said transfers “are not always just up to us. Other countries have a say. Detainees have a say” in cases in which there are concerns about inhumane treatment.
How in the world does one become a fitting subject for a special military commission as an illegal combatant even while pledging to “return to the battlefield”? Continue reading
Exactly one year ago today, I posted on the agreement in principle that would hand over the Detention Facility in Parwan, located near Bagram Air Base, to full Afghan control. I noted at the time however, that the “agreement” depended heavily on semantics and that the US was in fact doing its best retain as much control as possible:
The agreement appears to use semantics to say that the prisons are being handed over today, but with the reality being that there will be a gradual process taking six months. From the New York Times:
The memorandum of understanding would officially hand over control of detainees to an Afghan official as of Friday, but would also allow for a six-month period of transition to full Afghan control of the American-held detainees, American officials said.
As a practical matter, American officials are expected to maintain day-to-day control over the 3,200 detainees, most of them suspected Taliban insurgents.
During the six months, custody of the American-held prisoners would gradually transfer to Afghan authority, with the first 500 prisoners to be transferred within 45 days, according to American military and diplomatic officials who spoke on condition of anonymity as a matter of policy.
The move is a major concession to the Afghans, but the Americans will retain ultimate veto authority over releases of any insurgent detainees as long as American troops are in Afghanistan, and will continue to monitor humane treatment of the prisoners, the American officials said.
With the US maintaining veto power over release of any prisoners, perhaps Senator Graham will have to hold off on throwing his next tantrum, as his major objection to the handover had been that the Afghans would release prisoners who would immediately attack US troops. It’s not clear how the US will be monitoring humane treatment of the prisoners, since it is US training that put the torture methods in place to begin with.
The six month gradual handover phase has now been a full year, during which we have seen many rough patches. At the six month mark, I noted that the US balked on finalizing the handover because the Afghans refused to put into place a system for indefinite detention without trial. But throughout this process, the key really has been that the agreement itself has been a sham (just as with most of our agreements with Afghanistan) primarily because the US continues to maintain that it has final veto power on Afghan decisions to release prisoners.
On Wednesday of this week, the dispute over prisoner release came to a head, as Afghan President Hamid Karzai announced to the Afghan parliament that the final handover of Parwan would take place today and that he would immediately release a number of prisoners he said are innocent. Unsurprisingly, the US today unilaterally cancelled the final handover ceremony, throwing the whole agreement into disarray. From the New York Times: Continue reading
In a move that is guaranteed to provoke another tantrum from Lindsey Graham, Afghan President Hamid Karzai announced to the Afghan parliament today that final handover of the Detention Facility in Parwan to full Afghan control will take place on Saturday and that he plans to release prisoners that he says are innocent. Both AFP and Radio Free Europe have reported Karzai’s claims. From AFP:
“Our efforts for the transfer of the US-run prison, years-long efforts, have eventually paid off and next week the transfer will at last take place,” Karzai told the opening of a new parliamentary session in Kabul.
“This transfer of prison will take place on Saturday,” he added.
“We understand that there are some innocent people in these jails, I will order their release, no matter if there is criticism.”
Radio Free Europe also carried Karzai’s call for abuse to end in Afghan prisons:
Karzai on March 6 also called on his security forces to end incidents of torture and abuse of their countrymen.
“Today, I want to promise the people of Afghanistan that they are safe inside their houses,” Karzai said. “The law should take its course only in relations to the criminals. I call on their parliament to raise their voice and react strongly to cases of abuse, if they hear about it. As long as we do not end abuse and torture in our own institutions, we cannot stop others.”
An investigation by the government last month unveiled widespread abuse in prisons run by Afghan forces. The findings backed a recent United Nations investigation that Kabul initially rejected.
These words from Karzai on ending abuse in Afghan prisons are an encouraging development. Let’s hope the words are followed with action against those who have been involved in torture.
If it does occur, this handover will be an important next step in the US transferring authority to the Afghan government. However, handover of the prison has been a very long process in which the US has bargained in bad faith. Back in November, Karzai lashed out at US deception in this process.
Note also Karzai’s reference today to Afghans being “safe inside their houses”. That is clearly a reference to the hated US practice of night raids, which Karzai has also been looking to end. Of course, US night raids are the primary source of innocent Afghans being in US-run prisons, so it should be no coincidence that Karzai would speak of innocents being detained and night raids in the same speech.
It should also be noted that the US has a long history of secret prisons in Afghanistan and, as Marcy has noted, Obama still claims the right of indefinite detention without charges in Afghanistan, so don’t look for Saturday’s handover, if it occurs, to include those prisoners that Obama and Holder believe to be their most important, even if they can’t come up with a way to charge these prisoners with any actual crimes.
Karzai’s move to release prisoners he says are innocent could well provoke a showdown. As I reported last April, the prison agreement (and the night raid agreement, for that matter, too) although described as giving the Afghans full authority, in reality was a sham that left the US with full veto power over the release of prisoners. Will the US try to prevent Karzai releasing these prisoners? Or will the US simply re-arrest them and take them to a facility still under US control?
Afghan President Hamid Karzai lashed out yesterday, calling for the US to live up to the agreement signed last March that hands over complete control of the prison at Parwan to Afghanistan. As I pointed out while Lindsey Graham was throwing a tantrum over the prospect of this agreement (and a simultaneous one on night raids), the agreement called for a phased process, handing over control over a six month time frame. The agreement was signed a short time later and it did indeed call for a six month process. It also, at least according to the New York Times article on the agreement, allows the US to veto any decision by the Afghans on release of a prisoner. The six month process for the handover was set to end in September, but the US did not live up to its obligations under the agreement and still held a significant number of prisoners. At the same time, the US was urging Afghanistan to create, contrary to its constitution (and international law), a system for indefinite detention of prisoners without trial. Remarkably, the US also began at that time to argue that the agreement only held for prisoners in custody as of the time of signing and that the US retained control of those the US arrested after the agreement was put into place.
Now, after two months of wrangling over finalizing the handoff, Karzai has had enough. From the New York Times:
President Hamid Karzai ordered Afghan forces to take control of the American-built Bagram Prison and accused American officials of violating an agreement to fully transfer the facility to the Afghans, according to a statement from his office on Monday.
The move came after what Mr. Karzai said was the expiration of a two-month grace period, agreed to by President Obama, to complete the transfer of the prison at Bagram Air Base.
At issue in particular are 57 prisoners held there who had been acquitted by the Afghan courts but who have been held by American officials at the prison for more than a month in defiance of release orders, Aimal Faizi, the spokesman for President Karzai, said in an interview.
Similar language opens the Washington Post story on Karzai’s orders:
President Hamid Karzai has ordered his aides to institute the “full Afghanization” of the U.S.-run prison at Bagram air base, charging that American forces are continuing to detain Afghans despite a bilateral agreement in March to transfer all prisoners to Afghan authorities.
In a Pashto-language statement tweeted from the presidential palace late Sunday after Karzai met with his top security officials, the president complained that some prisoners ordered released by Afghan courts are still being held by U.S. forces.
“These acts are completely against the agreement that has been signed between Afghanistan and the U.S. president,” the statement said.
It said the Afghan defense minister, the attorney general and the national police general in charge of the Bagram prison should “take all required actions for full Afghanization of Bagram prison affairs and its complete transfer of authority to Afghans.”
I want to return now to the convergence of two details mentioned above. Continue reading
Following on the heels of the initial agreement that was virtually meaningless from the start, because the US still retained veto power of many of Afghanistan’s moves, the US today allowed Afghanistan to hold a “splendid” ceremony marking the “complete” handoff of prison control to Afghanistan. As might be expected, the handoff is not complete, and the US is still insisting it retains many powers the Afghans dispute.
Khaama provides a summary of the ceremony:
U.S. officials handed over formal control of Afghanistan’s only large-scale U.S.-run prison to Kabul on Monday, even as disagreements between the two countries over the Taliban and terror suspects held there marred the transfer.
Control of the jail has been hailed by Kabul as a victory for sovereignty, but analysts said it was largely a symbolic measure, as Nato prepares to leave Afghanistan after more than a decade fighting an insurgency.
“I’m happy that today we are witnessing a glorious ceremony that marks the handing over of responsibilities of Afghan prisoners to Afghans themselves,” acting defence minister Enayatullah Nazari said.
Multiple reports point to the establisment of an Afghan system for prolonged detention of prisoners without charges as the primary area of disagreement. The New York Times provides the transcription of the US government’s position on the dispute:
The coalition would not say what its concerns were, but some Afghan officials have raised objections to the system of no-trial detention that the United States insisted the Afghan government embrace at Parwan. This system allows the continued imprisonment of wartime prisoners deemed too difficult to prosecute but too dangerous to release.
The Times provides no basis for how we are to understand that these detainees are both “too difficult to prosecute” and “too dangerous to release”. How are we to understand the danger these prisoners pose if the evidence against them is not tested in a court?
The Washington Post dances around the edges of this issue, suggesting that the US position is governed by classified evidence, but that this practice has drawn “international criticism”:
The United States has held suspected militants for years on the basis of classified, undisclosed evidence, drawing international criticism.
Writing in Foreign Policy, Chris Rogers summarizes the situation in more detail, drawing on a report from Open Society Foundations (funded by George Soros), for which he is an attorney:
This partial handover has come at a high cost for Afghanistan: the creation of a new internment regime that will allow the Afghan authorities to detain without trial. A number of Afghan officials have called this new regime unconstitutional and fear it will be subject to abuse.
The creation of an Afghan internment regime appears to have been introduced largely at the behest of the United States, in order to facilitate the handover of U.S. held detainees, and satisfy the U.S. desire for a lasting internment system on the Afghan side into which it could continue to transfer future captures. Continue reading