New Bagram Rules Represent an Improvement, Additional Reforms Needed to Ensure Compliance with International Standards

As it notes an improvement in detainee review procedures for the 600
detainees currently held by the United States at its facility in
Bagram, Afghanistan, Human Rights First urges the United States to view
today's policy shift as a stepping stone to additional reforms to bring
U.S. detention operations in compliance with its international legal
obligations and to advance American counterinsurgency goals.

According to the new Detainee Review Board (DRB) procedures made
public on September 14 as part of habeas litigation in U.S. courts,
detainees will be appointed a personal representative, but not an
attorney, who can assist in their appeal for release. Detainees will
not have access to all the evidence and information that led to their
detention, but the personal representative will have access to all
evidence, including classified evidence, that is relied upon by the
three member military review panel in making a determination to
release, transfer to Afghan authorities for prosecution, or continue
the detainee's detention. Detainees may now call "reasonably available
witnesses" on their behalf, an important shift from the earlier policy
that did not permit detainees to call any witnesses. Although such a
provision to allow for witnesses was available in the Combatant Review
Status Tribunals (CSRTs) in Guantanamo, it was inadequately
implemented. And in a departure from past practice at Bagram, detainees
will receive notice of the basis for their internment and an
unclassified summary of the specific facts that resulted in their
capture. Detainees now will also be able to attend all "open" sessions
(where operational or national security information is not discussed)
and will receive notice of the results of the review board within seven
days after completion of the review.

"We recognize that the new procedures are an improvement over the
previous review regime in Bagram, as they begin to address persistent
concerns about prolonged and unjust detention of prisoners in
Afghanistan. Further changes are necessary, however, to ensure
detainees get a meaningful mechanism to challenge their detention,"
said Human Rights First Counsel Sahr MuhammedAlly, who recently
traveled to Afghanistan to interview more than a dozen former Bagram
detainees about their capture, detention, and release. "Given the
lessons learned from the discredited CSRTs in Guantanamo, the United
States should go further and provide detainees with a legal
representative to ensure an independent and fair hearing. It is equally
important to improve the reliability of information leading to capture
of an individual, a problem the DRBs do not address and which is
important to mitigate erroneous captures."

During Human Rights First's April 2009 interviews of former Bagram
detainees who stated that they were shown no evidence to support any
accusations and given no opportunity to challenge their detention. In
addition, detainees were not permitted to have village elders or
witnesses vouch for them, nor could they question whether the
allegations against them were based on individual animosities or tribal
rivalries. When detainees were released they were given a piece of
paper stating that they were no longer a threat to coalition forces.

The United States has paid a high price for these and other problems
in Afghanistan. Civilian casualties, arbitrary detention, mistaken
captures, ill-treatment and intrusive house searches have led to
decreasing Afghan support of the U.S. mission there. A 2009 ABC News
poll found that only 37% of Afghans say they support Western forces,
down from 67% in 2006 and citing as reasons unjust U.S. military
practices.

"Successful counterinsurgency strategy depends on U.S. actions being
seen as fair by the Afghan people, whose consent and cooperation is
needed to further U.S. goals in ensuring a stable Afghanistan," said
MuhammedAlly. "To achieve this goal, the U.S. and Afghan governments
should enter into a public agreement that sets forth the grounds and
procedures for U.S. detentions consistent with international law. The
U.S. should also seek to involve the Afghan government in the detention
review process to provide both independence to the proceedings and
advance the U.S. strategic mission to grow the capacity of Afghans to
provide for their own security."

Human Rights First will be closely monitoring the implementation of
these new procedures to evaluate their effectiveness in ensuring that
detentions in Afghanistan are not arbitrary. As part of that
evaluation, Human Rights First is calling for an independent, public
monitoring of the implementation of the new procedures in order to
fairly assess their effectiveness. The organization also urges the
Obama Administration to order that detainees captured outside of
Afghanistan and brought to Bagram be repatriated to their home
countries for release or, where evidence exists, transferred for
prosecution in either U.S. federal courts or in their home countries.

For more information about Human Rights First's work in Afghanistan, please visit https://www.humanrightsfirst.org/us_law/detention/index.aspx.