Washington keeps a lock on detainees
By Gareth Porter
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 US detention policy in Afghanistan by Major General Douglas Stone in
early 2009 had concluded that holding hundreds of detainees without charge in
both US and Afghan detention facilities help the hardcore Taliban radicalize
the vast majority of the detainees.
Stone was reported by The Guardian on October 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, Brigadier General Mark S Martins, deputy
commander of "Joint Task Force 435", which has responsibility for detainee
operations in Afghanistan, told Inter Press Service (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 on
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 US, 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 US detention facility at Bagram
air base with suspected insurgents.
Harward and other present and past JSOC officials, including General Stanley
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 favor 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 counter-terrorism
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 organization to keep him in
detention - only that he "supported" the insurgency and still poses "a threat
to US and coalition forces".
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 the result of
personal or tribal animosities. United Nations special rapporteur, Philip
Alston, wrote in a May 2009 report that international forces receive
information in return for payment from individuals holding grudges.
There is physical evidence in more than half the cases, according to Martins.
But he told IPS that evidence is used not to 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 to ensure that the detainee meets
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 specializing
in US 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.
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