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US Detention at Bagram: It’s Not Over Till it’s Over


By Daphne Eviatar
Law and Security Program

This is a cross post from Huffington Post

Once again, this time timed with Secretary of State John Kerry’s unannounced visit, the United States has officially handed over the keys to the Bagram detention center to the Afghans. Only just as with the previous agreement to do exactly the same thing, the U.S. military will actually not be handing over all of the detainees in its control, and it won’t say exactly who it will continue to detain or why.

The Afghan Analysts Network quotes Afghan government officials saying the United States has agreed to turn over “the 38 individuals considered particularly dangerous by the US” — known as “enduring security threats”. But the New York Times reports that actually, some unknown number of Afghan detainees will remain in U.S. custody. The U.S. government won’t say how many or how long they’ll continue to be imprisoned.

Meanwhile, some three dozen non-Afghans, who were never part of the initial handover agreementreached a year ago, will also remain indefinitely imprisoned by U.S. authorities at Bagram. As I reported after visiting Bagram two years ago, about a dozen of those non-Afghan prisoners have been cleared for release by a U.S. military tribunal set up at the base. And as I detailed in a report about U.S. detention at the prison at the time, those tribunals, known as “Detainee Review Boards,” are hardly lenient on the detainees. On the contrary, since detainees aren’t allowed to have lawyers or see all the evidence against them, the odds are heavily stacked against any detainee’s winning his release.

The U.S. government has never explained why the non-Afghans continue to be detained.

The U.S. has apparently obtained some sort of secret agreement from Afghanistan to continue to indefinitely detain those prisoners being transferred who the U.S. continues to believe might endanger U.S. troops. This had been the main sticking point over the last year, because the Afghan constitution doesn’t provide for indefinite detention without trial. It’s not clear how the two countries resolved that dispute, or whether those detained by Afghanistan will have the right to a trial or any other form of due process. As usual, the Memorandum of Understanding reached between the two nations will not be made public.

As he signed the “handover” agreement at a formal ceremony on Monday, Gen. Joseph Dunford, the U.S. commander in Afghanistan, said: “This ceremony highlights an increasingly confident, capable and sovereign Afghanistan.”

Perhaps, but the U.S. government won’t prove its own commitment to sovereignty, stability and the rule of law in the region so long as it continues to indefinitely imprison Afghans and non-Afghans alike there — without charge, trial or minimum due process of law.