Parwan prison

US Decries Rule of Law in Afghanistan While Calling for Overruling Afghan Attorney General

Update: Reuters is reporting that the 65 prisoners were released on February 13.

Without a single hint of awareness of the irony involved, the US military yesterday released a statement decrying Afghanistan’s decision calling for the imminent release of 65 prisoners held at the Afghan National Detention Facility at Parwan, stating that the release would be a “major step backward for the rule of law in Afghanistan”. There are 88 prisoners over whom the US and Afghanistan disagree, but so far only 65 are subject to the current release orders (with the release order for 37 of the 65 dating back to January). Recall that an independent commission, headed by Abdul Shakor Dadras, has been reviewing the status of the prisoners handed over from US control. Despite US bleating that Karzai and Dadras are releasing hardened insurgents bent on returning to battle, it is hardly noted that over 100 of the prisoners have been ordered held over for trial and that the US has not disputed the release of hundreds of others (648 out of 760 reviewed as of January) against whom there was no evidence of crimes.

In their rush to transcribe the complaints from the US military, articles by the New York Times and Los Angeles Times quickly brush over the fact that the results of the Dadras board have been reviewed both by the Afghan attorney general’s office and Afghanistan’s National Directorate of Security, which is the main intelligence agency. In fact, the New York Times doesn’t mention the NDS review at all. From the Los Angeles Times article:

Afghan officials issued a sharp rebuttal, saying the attorney general’s office and the National Directorate of Security – Afghanistan’s CIA – had reviewed the U.S. information and found insufficient evidence to continue to hold the prisoners. “According to Afghan laws there is no information gathered about these detainees to prove them guilty, so they were ordered released,” Abdul Shakoor Dadras, head of the Afghan government committee responsible for the prisoner issue, said in an interview Tuesday.

The New York Times has also posted a document (pdf) purporting to lay out the evidence against the 37 disputed prisoners cleared for release in January. Remarkably, although the military is expressing concern for rule of law, there is a strong reliance on failed polygraph tests in the evidence cited. Of course, polygraph results are so unreliable that they are not admissible in most US states, but that doesn’t seem to matter to the military. Fingerprints and other biometric matches are also cited in the document for some prisoners, but whether these matches are strong or weak is not discussed, even though a court would be very interested in the level at which the match is said to occur. Similarly, evidence of explosive residue is cited for some of the prisoners without any discussion of how conclusive the test result was. Laughably, possession of firearms is cited for many of the prisoners, despite the fact that the country in which they live has been at war for over the last twelve years after the US military invaded.

Back in January, Dadras had this to say about some of the evidence:

Mr. Dadras said in an interview on Monday that he was only being true to Afghan law. He insisted that he had to discard any evidence that was collected without a defense lawyer present, which would appear to include anything in the suspect’s possession when captured. He also said he distrusted evidence collected years after suspects were detained, and was not persuaded when lab analysis found residue from chloride chemical compounds used in explosives. Suspects could have picked up the residue other ways, he said.

“The air is contaminated with chlorides, given the fighting; there is bombing and the wind,” Mr. Dadras said.

Returning to the US military statement, they do acknowledge that Afghanistan’s attorney general’s carried out a review of the disputed cases. However, they dismiss that review: Continue reading

Once Again, US Pretends to Hand Over Control of Parwan Prison, Holds Back Some Prisoners

Stop me if you’ve heard this one before. We have headlines at multiple news outlets trumpeting that the US has ceded control of Parwan Prison (newly re-named today as the Afghan National Detention Facility at Parwan!), but when we drill down just a bit, we see that the US can never truly let go of its love of indefinite detention without trial, and so they have held back a few prisoners from today’s deal. Rod Nordland and Alissa Rubin do the best job of cutting through the US reliance on deception and semantics with their article in today’s New York Times, where even the headline writer got into the spirit of seeing this “agreement” as it really is: “U.S. Cedes Control, Almost, on Afghan Prisoners“.

At the heart of the long-standing difficulty in handing over control of the Parwan facility has been the US insistence that some prisoners be maintained indefinitely without charge while Afghanistan has continued to point out that the rule of law should prevail and all prisoners deserve a trial to determine their guilt. Nordland and Rubin were fed a list of recidivist Taliban figures who have been released by Afghanistan only to return to battle, but they did not allow that information to cloud their reporting on the fact that the US has held back some prisoners in the handover:

The American military formally transferred all but “a small number” of the Afghan prisoners at the Bagram Prison to the Afghan government on Monday in a ceremony that almost, but not quite, marked the end of the American involvement in the long-term detention of insurgents here.

/snip/

Afghan officials said the review boards will no longer exist and all prisoners at Bagram, present and future, will go straight into normal judicial proceedings. American officials, however, said they expected the Afghans to maintain review boards, but without American participation. The difference may be a semantic one, as Afghans expect teams of prosecutors to review which prisoners are released and which are prosecuted in court.

An American military official in Kabul insisted that the military has confidence that those insurgents whom the United States views as enduring security threats would not be released easily or quickly. “These people pose a threat to Afghan soldiers and Afghan civilians, too,” the official said. “We’re confident they will have appropriate measures in place to ensure dangerous detainees don’t pose a threat to Afghan and coalition forces.”

The Americans have long argued for a nonjudicial review process and a way to hold insurgent prisoners in long-term administrative detention, because of the difficulty of building criminal cases under battlefield conditions. Americans have argued that without such a system, soldiers in the field may be tempted to kill rather than capture insurgents. Afghan officials objected that administrative detention was unconstitutional.

We get a bit more information on the prisoners held back in the AP story carried in the Washington Post:

The detention center houses about 3,000 prisoners and the majority are already under Afghan control. The United States had not handed over about 100, and some of those under American authority do not have the right to a trial because the U.S. considers them part of an ongoing conflict.

There are also about three dozen non-Afghan detainees, including Pakistanis and other nationals that will remain in American hands. The exact number and nationality of those detainees has never been made public.

“They are not the priority of the Afghan government so the Americans can keep them for the time being. Our priority are the Afghan detainees,” Afghan Defense Ministry spokesman Gen. Zahir Azimi said.

The US sweetened the pot today with an extra $39 million in funding for the facility on top of the approximately $250 million it has already spent building and maintaining it.

Both Afghan news sources I follow, Khaama Press and TOLONews, run straight stories today reporting full handover without mentioning the prisoners that the US is holding back.

All coverage of today’s handover agreement that I have read does place it in the context of the next agreement that is required on whether US troops remaining behind after the NATO withdrawal at the end of 2014 will have criminal immunity. (I must have made too many SOFA jokes in post headlines, because now all US news sources refer to the need for a “bilateral security agreement” rather than a “status of forces agreement”.) The timing for getting today’s agreement in place is quite significant, as John Kerry has suddenly appeared in Afghanistan, presumably to do a bit of SOFA shopping. I’m guessing he will promise a very good purchase price.

Update: The New York Times article has mutated and no longer has the headline that was so revealing. New headline: “Amid Fears of Releases, U.S. Cedes Prison to Afghanistan”. Oh well, the clear explanation lasted for a while and even still lingers in the url of the article.

Marja Serves as Microcosm of Military Failure in Afghanistan, But Failure is Country-Wide

Deputy Defense Secretary Aston Carter strolls through Marja marketplace on February 24. How many security forces were present out of camera range?

Back in February of 2010, US President Barack Obama’s surge of troops in Afghanistan began its offensive by trying to take the Marja district of Helmand Province. Then US commander of forces in Afghanistan, General Stanley McChrystal famously touted his counterinsurgency program for the area, saying “We’ve got a government in a box, ready to roll in”.

Eight months into the battle for Marja, we had this:

As U.S. involvement in the war enters its 10th year, the failure to pacify this town raises questions about the effectiveness of America’s overall strategy. Similarly crucial operations are now under way in neighboring Kandahar province, the Taliban’s birthplace.

There are signs the situation in Marjah is beginning to improve, but “it’s still a very tough fight,” said Capt. Chuck Anklam, whose Marine company has lost three men since arriving in July. “We’re in firefights all over, every day.”

“There’s no area that’s void of enemy. But there’s no area void of Marines and [Afghan forces] either,” said Anklam, 34, of Fort Lauderdale, Fla. “It’s a constant presence both sides are trying to exert.”

/snip/

The result, so far at least: Residents say the town is more insecure than ever.

“There was peace here before you came,” farmer Khari Badar told one Marine patrol that recently visited his home. “Today, there is only fighting.”

Of course, the Defense Department would have us believe everything is now fine in Marja. They staged a stroll through the marketplace back in February by a Deputy Defense Secretary, presumably to mark the two year anniversary of the offensive. I wonder if this stroll was as heavily protected as John McCain’s 2007 stroll through a Baghdad marketplace.

But even though we are supposed to believe the offensive worked in Marja and the Taliban were routed, there was this from DoD on actions from April 15 of this year: Continue reading

The US and Afghan National Army Become Partners on Night Raids

Yesterday, the US and Afghanistan drew closer to an agreement on night raids. Not only would the deal give Afghan courts veto power over the raids (though, in some cases, the raids could be approved after the fact), but it makes Afghan military personnel the lead in any night raids.

Under terms of the proposed accord, night operations by special forces would be subject to review by Afghan judges. The deal, which people familiar with it said could be signed later this week, would also give Afghan forces the lead in all the operations.

Also yesterday, General Sher Mohammad Karimi, who is not only the lead investigator into the Panjwai massacre, but is also the Afghan army chief and a graduate of several Special Forces courses at Fort Bragg, announced that he had spoken with two witnesses who said just one soldier came to their house on March 11.

Afghan army chief Gen. Sher Mohammad Karimi, whom Karzai sent to Kandahar to investigate the massacre, told McClatchy that two survivors he interviewed offered credible accounts that the killings were the act of a lone person.

“They told me the same thing,” Karimi said. “They both said there was (only) one individual who came to their house.”

Now, there are more than two witnesses to the killings. Though there are more surviving witnesses from Alkozai than there are from Najiban, where all the people in Mohmmaed Wazir’s home were killed, and where Mohammad Dawood’s children have said just one individual “came to their house” but more were standing outside with lights on. It would be fairly easy to find two witnesses from Alkozai to say there was just one killer–as most evidence suggests there was–but harder to find two adult witnesses to say much of anything about what occurred at Najiban (though Dawood’s wife and Agha Lala appear to agree there were multiple men at the village), which is where evidence suggested there was more than one killer but which is also where almost all the adult witnesses are now dead.

Add in the fact that Karimi explicitly states that he hopes there is just one killer.

Karimi said a joint Afghan-U.S. team was continuing to investigate the killings and hoped to collect more forensic evidence.

“I hope it is proved that it is one guy,” he said.

And that Karimi hasn’t been permitted to speak with Sergeant Bales, and this statement should be taken at face value.

The guy who just got put in charge of American Special Forces running night raids in Afghanistan (the same ones who might be implicated if more than one person was present at Panjwai) has stated he found two witnesses who say only one man came in their house the night of the killing.

There’s one more detail that’s interesting about yesterday’s developments. According to the WSJ, there’s still a dispute about what happens to those Afghans captured on night raids.

Officials had expected the deal could be signed as soon as Wednesday. But a last-minute disagreement arose over how long U.S. forces would be allowed to hold Afghan detainees picked up in joint Afghan-American special-operations night raids. The U.S. wants to be able to question detainees to try to glean intelligence about militant networks and activities. The Afghans want control of the detainees.

On Monday, with some fanfare, the US congratulated the guy who is now purportedly in charge of Afghan Detention Operation Command.

Top U.S. military and diplomatic officials in Afghanistan offered their congratulations yesterday as an Afghan officer took charge of Afghan Detention Operations Command.

Marine Corps Gen. John R. Allen, commander of the International Security Assistance Force and U.S. forces in Afghanistan, joined U.S. Ambassador to Afghanistan Ryan C. Crocker in congratulating Maj. Gen. Faroq Barekzai on his assumption of command at a ceremony held in Parwan, Afghanistan.

Afghan President Hamid Karzai appointed Barekzai to his new position March 28, officials said.

Today’s event is nothing short of monumental when looking at the significance of Major General Barekzai’s assumption of command and the responsibilities he assumes for the Afghan people and his nation’s justice system,” Allen said at the ceremony. “This is a symbolic and visible step marking the progress we continue to make in partnership with the Afghan government as we work to develop and uphold the sovereignty they rightfully deserve.”

Officials said the ceremony marked the first step of an agreed-upon process that will give the Afghan defense ministry full control of the detention facility within six months while protecting U.S. international and domestic legal obligations regarding detainees. Under the terms of a memorandum of understanding signed March 9, the United States will provide ongoing support and advice to the Afghan commander for up to one year.

This assumption of command marks another step in the transition to Afghan control of security and is a sign of our support for Afghan sovereignty, as well as our commitment to an enduring partnership,” Crocker said. [my emphasis]

Yeah, there’s that bit about us hanging around for a year as “advisors.” But if this truly is “nothing short of monumental” (man is General Allen one superlative ass-kisser), then why, two days later, did we say we don’t actually want to hand over detainees?

And if General Barekzai is in charge of the detention system we don’t want to hand over detainees into, then where do we intend to question these detainees? FOBs?

In short, there’s a whole lot of kabuki going on, at least with regards to the “sovereignty” we’re devolving to Afghans, and possibly with respect to the Panjwai massacre.

Emptywheel Twitterverse
bmaz @MarkSZaidEsq @emptywheel @KanysLupin @BradMossEsq @Thomas_Drake1 Legality, ability of cts to rule, extent of disclosure, nature of collectn
2mreplyretweetfavorite
emptywheel @MarkSZaidEsq the first is clearly false. the second may have no means to be tested. @KanysLupin @bmaz @BradMossEsq @Thomas_Drake1
4mreplyretweetfavorite
emptywheel @MarkSZaidEsq That judges get all info they ask, that overseas USP collection legal @KanysLupin @bmaz @BradMossEsq @Thomas_Drake1
4mreplyretweetfavorite
emptywheel @MarkSZaidEsq But as I've pointed out some false assumptions on your part, 2-way street. @KanysLupin @bmaz @BradMossEsq @Thomas_Drake1
11mreplyretweetfavorite
bmaz @BradMossEsq @emptywheel @MarkSZaidEsq @Thomas_Drake1 Again with the completely bogus+impertinent "legal/illegal" dichotomy.
11mreplyretweetfavorite
emptywheel @BradMossEsq Actually, no. BC govt officials recently actively misled oversight body on it. @MarkSZaidEsq @Thomas_Drake1 @bmaz
26mreplyretweetfavorite
emptywheel @BradMossEsq 1. And told Tsarnaev he couldn't have it, tho govt has said they used it w/him. @MarkSZaidEsq @Thomas_Drake1 @bmaz
27mreplyretweetfavorite
emptywheel @MarkSZaidEsq Sure. But now it is designed to ALSO avoid the non-hypotheticals. @BradMossEsq @Thomas_Drake1 @bmaz
30mreplyretweetfavorite
bmaz @MarkSZaidEsq @emptywheel @BradMossEsq @Thomas_Drake1 They are only "hypothetical" because of govts malicious concealment from Cong+citizens
33mreplyretweetfavorite
bmaz @emptywheel @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Evidence can be collected "legally" and still used improperly, and we know it has.
34mreplyretweetfavorite
bmaz @emptywheel @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Not to mention that "illegality" is a false+impertinent std. to Constitutional issue.
35mreplyretweetfavorite
emptywheel @MarkSZaidEsq Just pointing out neither FISC nor defense courts may expose any hypothetical illegality @BradMossEsq @Thomas_Drake1 @bmaz
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