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Handoff of Detention Facility in Parwan Marred: Afghan Government Places Higher Value on Rule of Law Than US

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.

/snip/

“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

Emptywheel Twitterverse
bmaz @jessewegman @davidminbklyn I think Scott Greenfield and Jeralyn Merritt are both approachable and quite good on criminal issues.
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JimWhiteGNV RT @ZaidJilani: Tweeting this during another mass school shooting these guys are classy http://t.co/PmrCaHKHCO
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emptywheel @mattizcoop Now whyever wouldn't you want him as AG? I think w/all the PR pretending DOJ doesn't like subpoenaing journos it'd be problem.
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emptywheel @Krhawkins5 But he was chased out of govt by David Addington precisely to prevent him having influence @aliwatkins @kendilanianap @froomkin
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bmaz @jessewegman @davidminbklyn Far too much reliance on law professors.
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bmaz @jessewegman @davidminbklyn Not you personally, but generally (and from some friends I know well, I see far too little.
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emptywheel Litigious FOIA terrorist "He has filed 15 lawsuits prior to this week's 4 since 2012, acc to Courthouse News records" http://t.co/Xv08XKRRrB
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bmaz @rickhasen Probably. But if Obama waits until the Senate is lost, then Bharara becomes far more likely. And Schumer will press hard for him
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bmaz @davidminbklyn @jessewegman ...that really don't have a clue about actual formal litigation and, especially, trials.
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bmaz @davidminbklyn @jessewegman ...actual experienced practitioner on the various types of cases instead of reliance on law profs and lay people
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