The Afghanistan Detainee Transfer Challenge

by Geoffrey Corn

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.

http://opiniojuris.org/2006/01/09/the-afghanistan-detainee-transfer-challenge/

2 Responses

  1. Some of the most difficult issues facing the criminal justice systems of modern, civilized societies arise in the same area discussed in your comment. In a sense, the terrorists have used the sort of asymmetrical approach to warfare you mention elsewhere in this blog to drive a wedge into the murky chasm that exists between the rules of war and national security on the one hand and criminal justice on the other. Neither system, which western societies have tried hard to keep as separate as possible through unnatural and awkward legal fictions, is adaptable to the threat posed by “enemy combatants.” In order to prosecute terrorists, our system requires us to disclose far too much information about what we know about terrorists. Significant prosecutions would enable terrorist groups to exploit the essential constitutional guarantees of our criminal justice system, which require the disclosure of a wide range of evidence and call for open trials, to educate themselves on our national security practices. This is a very unacceptable approach to dealing with terrorists.

    The criminal justice system is also far too cumbersome to adequately respond to terrorist threats even in the best of circumstances where admissible evidence is readily available. Complex cases, particularly those with international components, require immense time and resources to successfully prosecute.

    Several years after 9/11 we still struggle for a way to fill the legal void being exploited by the terrorists, and while a solution is desperately needed, it seems almost impossible to conceptualize. Our legal histories have boxed us into a corner. As difficult it may be, however, our security requires us to develop a new model that will allow for the long-term detention of enemy combatants while assuring respect for human rights. This may require constitutional amendments.

    It is very likely that some of the harshest critics of any model designed to allow for the prosecution and detention of individuals in a fashion that prevents the disclosure of critical national security secrets will likely come from Europe, which takes great pride in its European Convention on Human Rights. Ironically, that Convention is based almost entirely on the Bill of Rights in our own Constitution. As hard as it will be to find solutions in our own system, it will be much more difficult to find a solution acceptable to the international community.

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