In his post “Extrajudicial Release: A New Rule-of-Law Problem?” Gabor Rona rightly criticizes U.S. officials’ use of the term “extrajudicial release.” It is a troubling description that, as Gabor notes, completely overlooks the fact that the detainees in question have never been tried or even ordered detained by a court. Such statements, and the revision of history they entail, are indeed “signposts on the road to liberty lost.”
However, Gabor’s post somewhat mischaracterizes how the applicable Afghan legal regime operates as well as the nature of the United States’ objections in these cases. The post also overlooks objections that have been voiced within Afghanistan to the proposed releases.
Gabor claims that the United States wants to see these individuals “remain in indefinite detention,” and criticizes the United States for failing to turn over evidence to Afghan authorities for the purposes of prosecution.
However, the United States is not demanding that the detainees be held in indefinite detention. The disagreement is over whether there is sufficient evidence to refer these individuals to the Afghan national security court, the Justice Center in Parwan (JCIP) for criminal prosecution under Afghan domestic law. Afghan officials have also acknowledged that U.S. forces have in fact handed over evidence to Afghan authorities for the purposes of prosecution (though it is unclear what exactly the nature of the evidence is against each of the detainees).
Unlike the U.S. Detention Review Boards (DRBs), which could recommend individuals for continued law of war detention, the Afghan Review Board (ARB) reviews the evidence against former U.S.-held detainees and recommends that they either be referred for prosecution at the JCIP, or released because of insufficient evidence.
The ARB is also not itself a court or a judicial body—it is an ad hoc review mechanism created by President Karzai as part of the agreement with the United States to handover Bagram. (It is perhaps relevant to note that the United States has not raised the same level of objections to hundreds of releases already ordered by the ARB). In effect, the United States is arguing that these cases should be referred to an Afghan court. As a matter of law, Gabor is certainly right to point out that the concept of an “extrajudicial release” seems to reverse the legal rule. However, to say the United States is seeking to undermine or circumvent the Afghan legal system misunderstands the detention, transfer and prosecution regime that both countries have established as part of the Bagram handover.
It may also be too simple to view the issue of Bagram releases as an old battle between Afghan sovereignty and U.S. national security interests. Opposition within the Afghan government and in civil society to the releases suggests that the reality is more complicated.
Based on lengthy discussions I have had in Kabul with knowledgeable individuals, as well as recent media reports, it appears that President Karzai has pushed for the release of many of these detainees despite significant objections from within the Afghan government, including high-ranking officials within his own cabinet. Afghan parliamentarians and civil society leaders have also voiced strong objections. The Afghanistan Detentions Working Group, a coalition of major Afghan legal aid and human rights organizations, has also released a statement expressing serious concern over the releases and implications for the rule of law.
To be sure, Gabor is right to point out the apparent hypocrisy in the United States’ claims given its own history of detentions in Afghanistan. In many ways, the United States has painted itself into this corner. But many in Afghanistan are also voicing objections to these releases and asking not whether these detainees should remain in indefinite detention, but whether the Afghan government should prosecute these detainees under Afghan law.