WASHINGTON - An initiative to revise the procedures for reviewing the cases of detainees in order to free marginal insurgents and innocent Afghans has run afoul of the interests of officers of the powerful Joint Special Operations Command (JSOC) in defending their role in earlier detention decisions.
A study of U.S. detention policy in Afghanistan by Maj. Gen. Douglas Stone in early 2009 had concluded that holding hundreds of detainees without charge in both U.S. and Afghan detention facilities was helping the hardcore Taliban radicalise the vast majority of the detainees.
Stone was reported by The Guardian Oct. 14 to believe that two-thirds of the prisoners held in Bagram were innocent and should be released.
But the new procedures for detainee review put in place late last year have led to relatively few releases, and the conditions attached to those releases have rubbed more salt on old Afghan wounds.
Of the 576 detainees whose cases had been reviewed under the new rules by late January, only 66 had been released, Brig. Gen. Mark S. Martins, deputy commander of "Joint Task Force 435", which has responsibility for detainee operations in Afghanistan, told IPS in a recent interview.
In addition, the release procedure requires the detainees and the village elders vouching for them to sign a paper saying the detainees had been held on the basis of intelligence linking them to the insurgency. At a meeting for the handover of some released detainees in Kabul reported by the New York Times Saturday, village elders from Paktia province refused to sign the paper until the offending language was changed.
The commander of Task Force 435, Navy Vice Admiral Robert S. Harward Jr., defended the intelligence conclusions at the Kabul meeting, but ultimately agreed to allow the elders to sign a paper that rejected that conclusion. In the future, the document will say that the detainees were considered insurgents in the eyes of the U.S., according to the Times report.
Harward's role at the meeting highlights an apparent conflict of interest that hampers the achievement of the original aim of the Task Force.
Harward had been assistant commander of "Task Force 714", a covert special operations group that conducted hundreds of targeted raids in Afghanistan under JSOC, from 2006 to 2008. Those raids filled the U.S. detention facility at Bagram Air Base with suspected insurgents.
Harward and other present and past JSOC officials, including Gen. Stanley A. McChrystal, who was then overall commander of JSOC, have an obvious interest in ensuring that the results of case reviews do not reflect negatively on JSOC's detention decisions.
Putting an officer with such an obvious conflict of interest in charge of the Task Force - and assigning Martins, a lawyer who is clearly more sympathetic to detainee rights, as his deputy - has all the earmarks of a Pentagon compromise.
The rules for reviewing cases and releasing detainees also appear to represent a compromise between those more concerned with defending past detention decisions and those who favour more protection of the rights of detainees to challenge their status. Although they include some concessions to detainees, their overall effect is still heavily biased toward a presumption of continued detention or trial.
In the interview with IPS, Martins defended the new rules as complying fully with the law of armed conflict. But Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, told IPS the law of armed conflict "isn't applicable when the United States is engaged in a non-international armed conflict like Afghanistan."
Since the war is not between two states, the applicable legal framework today is the domestic law of Afghanistan, Prasow said. That law does not permit indefinite detention without trial.
Under the new rules, the review boards are not required to find that an individual was actually a member of an insurgent organisation to keep him in detention - only that he "supported" the insurgency and still poses "a threat to U.S. and coalition forces".
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Even those inherently subjective questions are decided on the basis of "reasonably available evidence", rather than any standard of proof.
Detainees still have no right to legal counsel. They are assigned "personal representatives" who are supposed to help gather evidence but not to make a case for the detainee's innocence before the board.
"This is not an adversarial process," said Martins.
Martins acknowledged that the crucial evidence used by the board in reaching its conclusions is usually classified intelligence, so the detainee is not allowed to see it, although the representative can.
That intelligence has often been mistaken – in many cases as the
result of personal or tribal animosities. United Nations Special
Rapporteur Philip Alston wrote in May 2009 report that the governor of
an Afghan province told him there were people who “gave tips to the
international forces in return for payment from individuals holding
There is physical evidence in more than half the cases, according to Martins. But he told IPS that evidence is used not judge the detainee's degree of involvement with the insurgency but to "cast doubt on the credibility of the individual."
Martins noted that the new rules prohibit the command from reopening a board decision for release, as had occurred under the previous procedures.
The rules also forbid the consideration of evidence believed to have been obtained by torture, which had previously been allowed, and they permit the personal representative for the first time to contact those who know something about the circumstances surrounding the detainee's arrest, such as village elders.
Under the old rules, most detainees met only once with their personal representative before the review board meeting, according to a Human Rights First study last April.
Martins said the intent of the new rules is that the detainee should meet the representative at least twice before the first appearance before a panel. But he admitted that he needs more personnel to meet that standard.
"The goal is to have each representative work on three boards per week," Martins said. But he admitted that representatives are now working on just under five per week.
Martins said the average length of time a panel has taken to decide whether an individual should remain in detention is "just under an hour."
"I'd like to see more time and more deliberation," said Martins. "That's why we've requested more personnel."
Gareth Porter is an investigative historian and journalist specialising in U.S. national security policy. The paperback edition of his latest book, "Perils of Dominance: Imbalance of Power and the Road to War in Vietnam", was published in 2006.