Detention powers in flux in
Afghanistan By Jasmin Ramsey
WASHINGTON - Continued tensions over US
detention power in Afghanistan are highlighting
issues related to the country’s sovereignty.
A day after the New York Times reported on
US efforts to transfer its detention operations to
the Afghan government in accordance with a March 9
Memorandum of Understanding, the Open Society
Foundations (OSF) released a report finding that
the agreement and US-retained management and
authority over parts of the
Detention Facility in Parwan
(DFIP) at the Bagram airbase have resulted in an
"Afghan internment regime" and "differences in
understanding" about who controls the handling of
suspects and detainees.
"The United States
has been using internment in Afghanistan for many
years, where detainees are 'preventatively
detained' for 'imperative security reasons',
rather than accused of a crime and tried in a
court," notes the study by the New York-based OSF,
which was founded by investor and philanthropist
"In order to facilitate the
transfer of the detainees interned by the US
military, the Afghan government created its own
internment regime, closely resembling the US
system," state OSF researchers.
Weinbaum, who served as an analyst on Afghanistan
and Pakistan for the State Department from
1993-2003, told IPS that while "there is a
recognition that this transfer of responsibility
has to go forward in a responsible way" there is
"real doubt as to whether the Afghans have the
capacity to effectively incarcerate suspects".
"One of our concerns is that through legal
means people who we consider dangerous will be
released ... we also don't want to mix security
issues with settling of disagreements among
Afghans themselves," he said. "We want a change of
authority but a continuity of policy."
Weinbaum admitted that in trying to
transfer control to the Afghan government, the US
may need to simply "adjust to the fact that in the
end they are going to have responsibility and our
own unease with how Afghan law may come to bear".
Cori Crider, the legal director of
Reprieve, a prisoners' rights legal action
charity, told IPS that "Bagram prison - often
referred to as 'Guantanamo's evil twin' - is a
monumental insult to the rule of law".
leaves a terrible legacy to the Afghan government
of detention without charge and the abuse and
torture of prisoners," she said.
Afghanistan's national security advisor,
Rangin Dadfar Spanta, told the OSF that "we cannot
allow our allies and friends to have a detention
center in Afghanistan, this is illegal ... through
night raids and special operations they cannot and
should not take new detainees, they must hand over
at that place [of capture] to Afghans," he said.
US official accounts of the handover
agreement highlight differing interpretations.
"The March 9, 2012, Detentions MOU does
not limit the authority of US forces to capture
and detain the enemy," said one official quoted by
While the US wants to maintain
its ability to handle detainees of interest for
the time being, explicitly imposing its authority
in this way raises questions over who controls
"That is a concern here
because we recognize that the sovereignty issue is
a very sensitive one," Weinbaum told IPS. "If we
have set up conditions that seem to challenge
Afghan sovereignty there will be a reaction. We
have already had some."
senior advisor on Afghanistan at the OSF, said,
"The US military wants to keep its foot in the
door of Bagram, and they've been avoiding Afghan
demands for sovereignty in order to do so. But if
Afghanistan truly wants to bring legitimacy to
national security detentions, creating their own
unlawful internment regime is a bad way to start,"
The Hamid Karzai government has
stated that the MOU, which was initiated by Karzai
following heated domestic criticism over deadly US
night raids, indicates a complete halt of
transfers to the US controlled base in Parwan
"After September 9, no one will
be transferred into the US side of the DFIP,"
Aimal Faizi, President Karzai's spokesperson, told
The Times report
references a recent interview with William K
Lietzau where he states that the US had "insisted"
during the negotiation process that "the Karzai
administration embrace a system of no-trial
detention for wartime prisoners deemed too
difficult to prosecute but too dangerous to
release". That agreement was not ratified by
While the Times states
that the Afghan government considers the no-trial
system "legal" and suggests that most Afghan
officials understand and continue to cooperate
with the US position even while President Karzai
protests and postures to the contrary, the OSF
report includes contradictory assessments from
According to the head of
the Commission on the Constitution, Gul Rahman
Qazi, the Afghan internment regime that is holding
some transferred detainees without charge or trial
is not "legally sufficient" as a matter of Afghan
"This is illegal," noted
Qazi to the OSF. "Even if it were just one person
detained like this, it would be illegal."
The Times report also reveals that the US
will "maintain control over dozens of foreign
detainees in Afghanistan for the indefinite
future" and "continue to hold and screen newly
captured Afghans for a time".
The US is
especially unwilling to give up control over
"If we keep these
people with us in this current situation and deal
with them, this will create more problems for us
... Therefore it is better for the Americans to
keep them," Afghan General Ghulam Farouk told the
Crider cites the lack of attention
to the rights of non-Afghan prisoners.
"One example is Yunus Rahmatullah, who was
detained by UK forces in Iraq in 2004 before being
rendered to Afghanistan," she told IPS. "Can he
expect another eight years of imprisonment without
charge or trial, or will the UK government see him
Jasmin Ramsey is the
editor of IPS's US foreign policy blog,