The tug o’ war at Bagram

On Sunday, there will be a "splendid ceremony" marking the handover of the United States’ Bagram prison. Yet despite the pomp, the handover hides the real story – the Afghans wanted this to mark the end of U.S. detention power in Afghanistan, while the U.S. has other ideas.

Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over U.S. Detention Power, a new report from the Open Society Foundations, revealed that while Afghan officials say they will have complete control over the Bagram detention facility-also known as the Detention Facility in Parwan (DFIP)-by September 9, 2012, the United States is likely to continue to control a portion of the facility. The Afghan government says that no detentions will be carried out by the U.S. military, while the United States maintains that it "still retains the authority to capture and detain."

This partial handover has come at a high cost for Afghanistan: the creation of a new internment regime that will allow the Afghan authorities to detain without trial. A number of Afghan officials have called this new regime unconstitutional and fear it will be subject to abuse.

The creation of an Afghan internment regime appears to have been introduced largely at the behest of the United States, in order to facilitate the handover of U.S. held detainees, and satisfy the U.S. desire for a lasting internment system on the Afghan side into which it could continue to transfer future captures. The system, created last March, closely resembles the U.S. system at Bagram. It was not introduced through legislation or even consultation with Parliament-instead it was created last March through a secret "inter-ministerial agreement" and unpublished presidential decree that are vaguely worded and ripe for abuse. 

There is a danger that this will be the real legacy of Bagram–the creation of a flawed system of detention without trial in a country already wracked with decades of internal conflict, impunity, and weak rule of law. The Open Society Foundations learned that U.S.-Afghan disagreements over these issues led to a temporary suspension of detainee transfers from U.S. to Afghan control, which was resolved only days before the handover deadline.

And yet the "handover" ceremony will go on. In fairness, the majority of U.S.-held detainees have been transferred to the Afghan authorities at enormous speed over the past six months, and U.S. officials in Afghanistan are confronted with genuine challenges to transferring detainees responsibly. Handling of detainees by the Afghan government carries the potential for politicization and corruption of detainee releases. The capacity of the current government to process and properly prosecute detainees’ cases is weak, and there is risk of detainees suffering torture and abuse, concerns that were compounded by a controversial new appointment to head the intelligence directorate. But differences between the United States and Afghanistan also reflect a central, long-lasting tension between Afghan sovereignty and U.S. strategic interests that has yet to be resolved, and that the March 9 handover merely papered over.

With the ISAF troop drawdown underway, the United States is trying to thread a tough needle: put Afghans in the lead on security, while at the same time continuing U.S. military operations, and protecting U.S. personnel. The role of special operations forces, and the reliance on detention operations like night raids, remain central to U.S. military strategy. Despite Afghan demands for sovereignty over night raids, there has been no sign of a decrease in these detention operations or the number of detainees sent to Bagram. The Open Society Foundations learned that since March, the United States has sent an additional 600 detainees into U.S. detention at Bagram, which President Karzai’s National Security Advisor Dr. Rangin Spanta said was "not in accordance with our agreement."

Not only is this at odds with Afghan officials’ unqualified insistence on complete control of the DFIP, and an end to U.S. detentions there, but it highlights another, related disagreement: how long the United States can detain an individual before handing over to Afghan authorities. "After the signing of the [Detentions] MoU the time limit to hold detainee is 72 hours and should be respected," Presidential Spokesperson Aimal Faizi told us. National Security Advisor Dr. Spanta reiterated that "There is a big difference in perception between them and us on this issue. …I have discussed this with Karzai…and there is no tolerance with him on this issue."

Another unresolved issue is that of "third country nationals," or non-Afghan detainees. They remain in U.S. custody at the DFIP, their fate uncertain, and at risk of falling into a legal limbo of indefinite detention. The stalemate on these detainees ensures that the United States will continue to retain at least some portion of the DFIP for the foreseeable future, raising the troubling specter of another Guantanamo in Afghanistan.

Not wanting to rob President Karzai of a key political victory, the Afghan government appears, for now, to be turning a blind eye to these issues, and to the serious rule of law concerns that they raise. However, one of the principal criticisms of Bagram was its lack of legitimacy in the eyes of many Afghans-its secrecy, prolonged detention without trial, lack of access for lawyers and fears of detainee abuse. One has to wonder whether this is precisely what the United States has handed over to Afghanistan.

Agreeing to vaguely worded agreements that permits the U.S. and Afghan governments to interpret their obligations in starkly different ways may serve immediate political interests, but it is no way to build a lasting, legitimate, or lawful framework for detentions and ongoing military operations. Both governments have failed to resolve fundamental differences over the future of U.S. detention power in Afghanistan, and have presented the Afghan and American publics with very different pictures. These tough questions will be answered another day, it seems, as is often the case in Afghanistan.

Chris Rogers is a human rights lawyer for the Open Society Foundations specializing in human rights and conflict in Afghanistan and Pakistan.