The Afghanistan Detainee Transfer Challenge

Recent news reports indicate that the U.S. is pressing ahead with plans to build a high security prison in Afghanistan (see here and here). According to these reports, this is in preparation for transferring hundreds of “enemy combatants” from U.S. to Afghan custody. These detainees are currently held in U.S. operated detention facilities in both Afghanistan and Guantanamo Bay.

While the construction of a high security prison and the training of an Afghan guard force may remove the primary practical impediments for such transfer, this concept raises significant legal questions. Virtually all of the detainees that will in theory be transferred to Afghan control were captured by the U.S. armed forces during combat operations in Afghanistan. Because the President determined that captured Taliban fighters were conclusively not qualified for Prisoner of War status under the Third Geneva Convention, and this treaty did not apply to the conflict between U.S. forces and Al Qaeda operatives, none of these individuals are classified as Prisoners of War. Instead, they are generally regarded as “enemy combatants”, a term of convenience created by the Department of Defense to refer to members of armed organizations opposing U.S. forces who do not qualify for Prisoner of War status.

Since the inception of Operation Enduring Freedom in Afghanistan, the U.S. has been criticized for failing to articulate a legal basis for these detentions. The primary response has been a general military necessity theory – that the U.S. has authority to deprive these “enemy combatants” of the ability to rejoin the ongoing conflict. Presumably, the U.S. will attempt to convince the Afghan government to adopt the same theory for the continued detention of this population. Or, perhaps the Afghan government will establish an alternate legal basis for their continued detention.

Even assuming the establishment of an acceptable legal basis for continued detention after transfer, many other issues will need to be addressed. Will the Afghan government simply accept the “continued threat” determination of the U.S.? Or, will an independent mechanism be established to review such determinations. If so, will it be a military or civilian review entity, and what procedures will it utilize?

If such a review process is established, what criteria will it create to justify continued detention? Will a potential threat of rejoining dissident Taliban forces justify detention without charge? Or, will these detainees be subject to a criminal process for their combatant activities prior to capture? If so, will the desire to “prosecute or release” lead to charging war crimes before an Afghan version of the Military Commission? Finally, and perhaps most significantly, what will be established as the “termination point” for these detentions.

While the prospect of a large scale transfer of detainees from U.S. to Afghan control may seem troubling, the commitment of the U.S. to build this detention facility is clear evidence that such a policy is almost certainly going to be implemented. It is almost just as certain that the U.S. will provide substantial legal support to the Afghan’s in order to help “set the conditions” for this process. Based on the lessons of the last few years, look for the U.S. military and civilian lawyers tasked with providing this support to seek out inter-agency, academic, and NGO expertise to answer these questions and set these conditions as effectively as possible.