Afghanistan - USA 1-0

Progress in Resolving U.S.-Afghan Dispute Over Detainees

By ALISSA J. RUBIN and DOUGLAS SCHORZMAN
KABUL, Afghanistan — President Obama and the Afghan leader, Hamid Karzai, had what an American official called a “serious and positive” discussion on Wednesday night that the Afghans confirmed had made progress toward resolving an increasingly acrimonious dispute over detaining terrorism suspects, which had their two governments and their militaries at loggerheads for weeks.
In a video teleconference, Mr. Karzai and Mr. Obama had a wide-ranging conversation touching almost every hot-button issue that has complicated the plans of the United States to draw down its forces here, senior American and Afghan officials said. Most important, they began to resolve the two countries’ differences on rules for indefinitely detaining terrorism suspects without trial, known as administrative detention, officials from the two countries said. American military commanders insist on assurances that terrorism suspects they detain in the field will not be summarily released.

The Afghan Constitution and laws do not provide explicitly for indefinite detention, but Mr. Karzai has ordered his judiciary “to come up with a legal framework that allows us to keep those people who pose a serious security threat,” said Aimal Faizi, the president’s spokesman.
While other problems are also urgent, the conflict over the Americans’ insistence that some detainees should continue to be held without charge had begun to spill out in public and undermine diplomatic relations, said people involved in the discussions. Until the issue is resolved, the Americans have refused to turn over the last prisoners that they are holding at Parwan, the American-built detention center adjacent to the Bagram Air Base.

“President Karzai had a good conversation with President Obama last night,” Mr. Faizi said. “There were clear and frank talks — they started in general terms, then got very specific on the details regarding the 650-plus Afghan prisoners.

“After last night’s conference, this should be solved,” Mr. Faizi said. “We’re working to frame this legal issue. The judiciary will look at our laws and soon come up with a legal framework that allows us to keep those people who pose a serious security threat.”

A senior American official who characterized the conversation as “serious and positive” said that the call went on longer than planned.

“It was very matter-of-fact,” the official said. “They talked about resolving it, they didn’t talk about setting a legal framework to do it,” he said. But he added that if the Afghan spokesman had alluded to such a framework, then “that’s good.”

While there was no timetable set either for the Afghans to introduce a new law or regulation or for the Americans to hand over the prisoners, the friendly tone was a turnaround. Over the last three weeks, the Afghans have been increasingly confrontational in press statements and have suggested that the Americans are flouting the country’s sovereignty. The Americans, while keeping much of the argument behind the scenes, “were dug in,” a Western diplomat said.

There have been many ups and downs in the countries’ relationship, but the dispute over detainees has come at a particularly delicate time between Afghanistan and the United States because of deepening worries over killings of American and other coalition troops by infiltrators and disgruntled Afghan security force members and because of the provocative anti-Muslim video produced in the United States that last week set off protests across the Muslim world.

(American officials announced Thursday that the last of the 33,000 “surge” troops had left Afghanistan, leaving a force of 68,000 Americans in the country.)

The debate between the governments over administrative detention touches on a larger disagreement between international human rights advocates and security experts. That is whether countries with weak justice systems should have laws allowing detention without trial — and if they do, what limits should be put on the length of detention without legal review.

“The Afghan government’s justice system, as it is, is very shaky,” said Heather Barr, the Afghanistan researcher for Human Rights Watch. “So we are very concerned about setting up a parallel system in which even the protections which are supposed to exist, but are rarely followed, are completely absent.” She noted that many countries put administrative detention regimes in place for a short-term emergency, but never repeal them.

The dispute over detention has centered on the terms of a memorandum of understanding signed in March in which the Americans agreed to hand over all the Afghan detainees held in Parwan, as part of the transfer of security to the Afghans. The memorandum states that “Afghanistan has established an administrative detention regime.”

But there were disagreements among senior Afghan officials about whether the Constitution allowed for indefinitely holding dangerous prisoners who could not be tried because of a lack of admissible evidence. On Tuesday, Mr. Karzai’s legal advisers told him that Afghan law had no provision for detention without trial. On Thursday, Mr. Faizi said that Mr. Karzai had resolved to have his judiciary draft such a provision.

The NATO commander, Gen. John R. Allen, has privately expressed concerns that in the absence of an administrative detention process, dangerous insurgents captured on the basis of intelligence that could not be shared in court might be released and return to the battlefield, as has happened in the past.

The Afghans are signatories to the Second Additional Protocol to the Geneva Conventions, which recognizes the right to detain people as inherent in any armed conflict and provides for it to be done in a humane way. The Americans had assumed that their accession to that convention would allow them to put such a system in place, but some senior Afghan legal experts disagreed.

As the Afghans began to air doubts about continued detention, the Americans halted the transfer of the remaining 650 detainees they had captured since the memorandum was signed. That infuriated the Afghans, who viewed it as a violation of the memorandum and an infringement of their sovereignty.

The Afghan government would like to end the practice of having foreign troops detain Afghans, Mr. Faizi said. When they have to, they should not hold them for more than 72 hours, he said.

That could prove far too restrictive to the American military, which wants to hold suspected terrorists for weeks, if not months, for detailed interrogations. People close to the discussions over the detentions say they hope to come to a compromise between 72 hours and the weeks, or even months, requested by military interrogators.