By Sahr MuhammedAlly

The Obama administration's decision to move the trials of the five Guantanamo detainees accused in the 9/11 conspiracy -- including Khalid Sheikh Mohammed -- from the discredited Guantanamo military commissions and into federal civilian courts to face justice is a victory for the rule of law. Eight years later, the United States is finally bringing justice to the victims of the 9/11 attacks in a forum that is legitimate and credible. But the Justice Department should go further and try all detainees at Guantanamo in federal civilian courts, not military commissions. 

I have observed several military commission hearings in Guantanamo including the arraignment of the 9/11 defendants in June 2008. What I saw in every hearing was a second-class system of justice that made up rules as it went along, used unfair evidentiary standards for defendants, and subjected some detainees to ill-treatment and abuse. At the June 5^th arraignment of the September 11 defendants I recall thinking that should trial in the military commissions system continue, the American justice system will be as much on trial as the defendants' alleged crimes. But with the announcement that the cases will be transferred to federal courts, the government has recognized the need to shift the focus from the legitimacy of the judicial process to the validity of the actual accusations against the detainees.

Federal courts have a long and impressive track record of prosecuting complex terrorism cases while upholding due process and protecting national security. In a comprehensive study of 119 terrorism cases with 289 defendants, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, only three have been convicted in the broken military commissions. (For the full reports, see In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court (2008) and In Pursuit of Justice Update (2009)).

Although the cases of Khalid Sheikh Mohammed, Ramzi Binalshibh, Waleed bin Attash, Mustafa Ahmad al-Hawsawi, and Ali Abd al-Aziz Ali will be tried in federal courts, the administration is still pursuing prosecution of a number of individuals via military commissions, including the suspected planner of the USS Cole bombing in Yemen in 2000, Abd al-Rahim al-Nashiri. And though new reforms to the military commissions include some improvements over previous laws, they still fail to provide many of the fundamental elements of a fair trial. For instance, military commissions continue to permit the admission of coerced testimony obtained at the point of capture; they use an overly broad definition of who can be tried before military commissions that includes juveniles and those not accused of engagement in hostilities; and they permit defendants to be tried ex post facto for conduct not considered a war crime at the time it was committed. Military commissions thus retain the possibility of unfairness and their continued use perpetuates the damaged legacy of Guantanamo.

The Justice Department made the right decision to transfer the cases of the 9/11 attacks to New York courts for prosecution. But by dividing detainees into different categories --those able to be tried in federal courts and those who will face military commissions -- the administration is sending a message that there is not enough evidence to try some detainees in federal courts and that those detainees deserve a second class system of justice that cuts corners. All Guantanamo detainee cases should be tried in federal courts. Only by pursuing this route can the United States return to a system of justice that upholds American values and laws and makes a clean break from the shameful era of Guantanamo.

Sahr MuhammedAlly is a Senior Associate at Human Rights First.

Mandel Ngan-Pool/Getty Images

By Sahr MuhammedAlly

There is key information missing in General Stanley McChrystal's recipe to reform U.S. detentions in Afghanistan. The plan, part of the General's 66-page assessment published by the Washington Post, outlines a strategy to turn over "all detention operations in Afghanistan ... to the Afghan government once they have developed the requisite sustainable capacity to run those systems properly." This is the correct objective for the United States, but some of the ingredients for achieving it need to be filled in.

The reforms on U.S. and Afghan detentions outlined in the assessment incorporate many of Maj. Gen. Douglas Stone's recommendations submitted in the summer of 2009. Annex F of the assessment spells out reforms on U.S. and Afghan detentions which flow from this key policy objective:

Detention operations, while critical to successful counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF. With the drawdown in Iraq and the closing of Guantanamo Bay, the focus on U.S. detention operations will turn to the U.S. Bagram Theater Internment Facility (BTIF). Because of the classification level of the BTIF and the lack of public transparency, the Afghan people see U.S. detention operations as secretive and lacking in due process. It is critical that we continue to develop and build capacity to empower the Afghan government to conduct all detentions operations in this country in accordance with international and national law.

The assessment notes that under a new Combined Joint Interagency Task Force (CJIATF) the U.S.-Forces Afghanistan (USFOR-A) will work towards the "long term goal of getting the U.S. out of the detention business" by training and applying rule of law principles in all detention systems, including U.S. detentions, in Afghanistan. In essence, before the U.S. turns over detention operations to Afghanistan, it will apply rule of law reforms to current detention regimes and engage in capacity building on the Afghan side to handle such responsibilities. But, as always, the devil will be in the details of this work. The following are further steps that the United States can do now to advance detention reforms.

Evidence collection reforms

Better collection of evidence at the point where international forces capture suspected insurgents can improve the new U.S. detainee review procedures at Bagram by ensuring a more credible basis for deciding whether it is necessary to continue to hold a detainee. Improved evidence also helps inculcate the rule of law into Afghan efforts to prosecute.

Afghan defense lawyers and prosecutors have both expressed concerns to me that there is a problem with the evidence that is transferred with a detainee both by International Security Assistance Force (ISAF) and Operation Enduring Freedom (OEF) forces.  (Under current ISAF counter-insurgency rules, foreign military forces, including U.S. forces, must transfer detainees to Afghan custody within 96 hours. In contrast, under the OEF counter-terrorism mission detainees captured by U.S. forces are transferred to Bagram for detention or release, and since 2007 transferred to Afghan custody for prosecutions in the Afghan National Defense Facility (ANDF) in Pul-e-Charkhi prison).

But many times the evidence that is transferred with a detainee is lacking or does not meet the evidentiary requirements under Afghan criminal procedure. I have observed trials of former Bagram prisoners at the ANDF where there are no prosecution witnesses or sworn statements, thereby depriving a defense counsel of the ability to challenge the evidence. Instead, a judge decides the fate of a prisoner based on a summary of unverified evidence and allegations that have largely been collected by international military forces and transferred to Afghan authorities thereby resulting in trials that fail to meet both international and Afghan fair trial standards. (For examples, read  Arbitrary Justice: Trials of Bagram and Guantanamo Detainees in Afghanistan).

The assessment notes that ISAF has completed a review of current detainee policies and practices and has recommended changes to ISAF procedures to include better evidence collection to facilitate prosecution in the Afghan judicial system. OEF forces should similarly improve their evidence collection practices to better facilitate just and timely prosecutions.

The assessment also notes that the Combined Joint Interagency Task Force (CJIATF) will have a "Legal Group" to identify gaps in the Rule of Law framework that inhibit U.S. and Afghan detention and corrections. This is an important step forward that should take into account the evidentiary gaps that exist in current capture practices and hinder Afghan prosecutions. This Legal Group should also include Afghan lawyers to ensure that evidentiary standards under Afghan law are met in preparing files for prosecutions in the Afghan justice system.

How to empower Afghan capacity on detention

Gen. McChrystal's assessment is correct in noting that the Afghan people view U.S. detentions "as secretive and lacking of due process." Based on my interviews with Afghans as well as analysis of the old detention review procedures, detentions in Bagram are prone to be prolonged and unfair. As I noted in my analysis on the new detainee review procedures, a healthy dose of transparency will tell if the new procedures will cure arbitrary detention. Additional reforms such as improving information leading to capture to avoid erroneous detentions and providing legal representation are also needed. But in order for U.S. detentions to be legitimate in the eyes of the Afghan people, as well as to increase the capacity of the Afghan authorities to handle detentions on their own, the United States needs to find ways to bolster Afghan involvement now.

Two immediate steps are:

1. The establishment of a public security agreement between the U.S. and Afghan governments that sets out the legal basis for detention and the procedures for challenging detention, consistent with international law.
2. Including Afghan government participation in the detention review procedures in Bagram, perhaps through the new "Combined Joint Interagency Task Force" referred to in Gen. McChrystal's assessment.

Deradicalization in corrections facilities

In his assessment, Gen. McChrystal places much emphasis on corrections management in order to deradicalize the detainee populations in both U.S. and Afghan-run prisons. After years of conflict, the formal Afghan justice and corrections system is weak and faces serious difficulties, including poor infrastructure, inadequate training and education, and corruption. The press has reported on instances where individuals affiliated with the insurgency have broken out or bribed their way out of Afghan-run detention facilities.

The reforms outlined include programs for vocational training, rehabilitation, education, segregating imprisoned hard core insurgents from low level fighters, juveniles, common criminals, and reforming the national prison system to meet international standards. These are important reforms as prisons can play a role in radicalizing prisoners, which further underscores the need to process prisoners expeditiously, house prisoners in humane and safe conditions, and ensure fair trials for those suspected of wrong doing.

* * *

The report recognizes the "strategic vulnerabilities in a non-Afghan system... [and that] an Afghan system reinforces their sense of sovereignty and responsibility." I could not agree more, the United States must fulfill this objective by outlining how indeed the Afghans will have a greater say and involvement regarding detentions of individuals in their own territory.

Sahr MuhammedAlly is a Senior Associate in the Law and Security Program at Human Rights First.

Spencer Platt/Getty Images

By Sahr MuhammedAlly

The new Detainee Review Board (DRB) procedures for the approximately 600 detainees currently held in Bagram Air Base, Afghanistan, are an improvement over the existing review regime, which has resulted in prolonged and unjust detention and has been a growing source of frustration and decreased Afghan support for U.S. presence in Afghanistan. But these reforms do not address the core of U.S. detention problems that persist in Afghanistan -- problems that undercut America's counterinsurgency goals there.

I went to Afghanistan earlier this year to speak to former detainees suspected of involvement with the insurgency imprisoned by U.S. forces at Bagram. What I found was troubling. Many were captured in their homes during night raids that terrorized extended families, often involving destruction of property, sometimes even death to innocent bystanders. Detainees I interviewed had been held for 9 months, 2 years, and some up to 5 years without any opportunity to review the evidence against them or to produce tribal elders or other witnesses who could vouch for their innocence and character.

Take, for example, Wazir [which is a pseudonym; he asked me not to use his real name] who was released from Bagram in March 2009. He was captured one morning while working at a base on construction projects with U.S. forces, and showed me certificates of appreciation he'd once been awarded by the Americans. One morning in November 2007 while he was working at the base, soldiers handcuffed him and placed him in an isolation cell. He was eventually taken to the U.S. central detention facility at Bagram Air Base, where he was interrogated and told that U.S. forces had intercepted suspicious conversations on his satellite phone. Wazir asked to hear the recording of the voices and see the evidence against him. His requests were denied and he remained in detention for sixteen months, never to learn why he was detained or indeed, when he was eventually released.

The majority -- but not all -- of the hundreds of detainees held at Bagram as part of Operation Enduring Freedom are Afghan. The public does not know their names, their alleged offenses or how long they have been imprisoned. Worse yet, the prisoners themselves are kept in the dark about what evidence led to their capture and detention, as well as the reasons for their eventual release.

And a lack of information is not their only source of frustration. During my conversations with former Bagram detainees, another reoccurring theme emerged -- false accusations grounded in tribal rivalries and personal animosities were the reasons many detainees believed they had been arrested. Add cultural and language barriers between Afghans and foreigners to the mix and you have fertile ground for miscommunication, misidentification, and a recipe for arbitrary arrest and detention. It's not only the former detainees who have raised this concern. I spoke with a number of Afghan government officials who confirm that such mistakes have increasingly become a source of frustration and anger for Afghans.

The United States has paid a high price for these and other mistakes 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. A 2009 ABC News poll found that only 37% of Afghans say they support Western forces, down from 67% in 2006, citing unjust U.S. military practices as reasons.  

Can the new Detainee Review Board procedures turn things around for the United States in Afghanistan? Not on their own, but they do mark an important and long overdue first step. For example, the new DRB procedures revealed this week allow detainees to have the assistance of a military 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 detentions, but the personal representative will have access to all evidence, including the classified portions, that is relied upon by the three-member military review panel that decides whether to release, transfer to Afghan authorities for prosecution, or continue the detainee's detention. Detainees may now call "reasonably available witnesses" on their behalves, an important shift from the earlier policy that did not permit detainees to call any witnesses, "reasonably available" or not.

Building on these initial reforms, the United States should now take additional steps to ensure an end to the arbitrary detentions that have undermined its counterinsurgency goals. For example, given the discredited Combatant Review Status Tribunals (CSRTs) in Guantanamo, which were found as an inadequate substitute for habeas by the U.S. Supreme Court in 2008, detainees should be allowed to have lawyers, not just personal representatives, so they are given a fair opportunity to challenge their detentions. A lawyer, unlike a non-lawyer military representative, would be independent and more effective in gathering witnesses and evidence to challenge the lawfulness of his client's detention. It is unclear whether the policy guidance prohibits reliance on coerced evidence in determining a person's detention status, but if this is indeed the policy, it should be explicit and made public. Independent human rights observers should also be allowed to monitor implementation of the new procedures, as the Defense Department has already suggested, in order assess the effectiveness of the new procedures.

But quite apart from review procedures, reforms are needed to improve the reliability of information leading to capture in the first place. Review of rules of engagement during house raids might also be useful and necessary to reduce harm to persons and property during arrests. In addition, the United States should seek Afghan "buy-in" and more local involvement in detention-related matters in order to provide legal legitimacy and to further the goal of making Afghans responsible for their own security.

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. To this end, the United States and Afghan government should enter into public security agreements which detail rules for capture, detention, and treatment of persons in Afghanistan that are consistent with international humanitarian and human rights legal standards. A transparent and public agreement that complies with international law will give legitimacy to foreign military actions among the Afghan population and will promote the rule of law.

Fair and legitimate reforms would deprive al Qaeda and the Taliban the propaganda and recruiting opportunities created by unjust military practices. Respect for the rights of Afghan citizens is not only an important element to defeat of the insurgency, it is also a necessary precondition to establishing long-term stability through the rule of law.

Sahr MuhammedAlly is a Senior Associate in the Law and Security Program at Human Rights First.

Spencer Platt/Getty Images