Closing Guantanamo and deciding what to do with future international terrorism suspects has been harder than expected. According to the LA Times, some U.S. officials are considering expanding U.S. detention operations in Afghanistan and creating a prison similar to Guantanamo to hold terrorism suspects in order to avoid trying them in U.S. courts due to lack of evidence. This is a bad idea -- a very bad idea.
Although it may be tempting to suggest Afghanistan as an alternative holding site for suspected terrorist from places like Yemen and Somalia, I can say with certainty that establishing mini Gitmos in other countries is not a solution. If we go that route it would undoubtedly lead to a public relations disaster for the U.S. military still trying to mend relations with the Afghan people, and put a strain on diplomatic relations with the Afghan government. Not to mention such a move is legally impermissible.
I went to Guantanamo in 2007, 2008, and 2009. I have also been to Afghanistan and looked at U.S. detention operations closely. Many former detainees I interviewed in 2009, who were from the southern and eastern parts of Afghanistan, were captured in their homes during night raids U.S. forces that terrorized extended families and often involving destruction of property. Some detainees I interviewed had been held for 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.
From what I've observed these actions have undermined U.S. efforts, both military and political, in Afghanistan. In my conversations with Afghans and Afghan officials in 2009, the anger over night raids and arbitrary detention by international military forces are second to that of civilian casualties and has alienated the Afghan people. In 2009, however, top commander of U.S. and NATO forces in Afghanistan, Gen. Stanley McChrystal unveiled a new strategy that prioritizes protection of civilians, reforming U.S. detention practices, and winning back the support of the Afghans. To establish a "Gitmo" in Afghanistan could potentially undo all of this. Which might explain why Gen. McChrystal, is against establishing U.S. detention operations in Afghanistan.
Presently, the United States military in Afghanistan is already dealing with close to 800 detainees being held at the newly built Detention Facility in Parwan, including the small number of detainees captured outside Afghanistan and rendered to Bagram, during the Bush administration, some of whom are litigating their right to habeas in U.S. courts. (The previous Bagram Theater Internment Facility, which was the site of detainee deaths in 2002 and 2003 and abuse is no longer being used).
In September 2009 the Obama administration announced new detention reforms that include a new Detainee Review Board mechanism which for the first time allows detainees to bring in witnesses to rebut the military's allegations, although detainees don't have access to counsel. Detainees are eventually released, transferred to tribal elders under a reconciliation program, or tried in Afghan courts under Afghan law. (See Hidden justice: Do Obama's detention reforms in Afghanistan go far enough?). In 2009 Gen. McChrystal stated that the end goal is for the United States to transfer all detention operations to the Afghan government provided they have the capacity to process and try detainees fairly and in accordance with Afghan and international law. Task Force 435, which is responsible for U.S. detention operations in Afghanistan, plans to transfer the Parwan detention facility to the Afghan government in 2011, although the U.S. will still be involved in detention operations in some capacity. These plans, at least publicly, do not include expanding U.S. detentions in Afghanistan for future captures of terrorism suspects from Somalia, Yemen or elsewhere. But as the LA Times reported some White House officials are considering this as an option.
The business of capturing and transporting individuals from different countries to Afghanistan, which is an area of conflict, for warehousing beyond the rule of law and access to courts in laymen's term is kidnapping -- something that the United States should not be promoting as a matter of policy and constitutes a crime. Forcefully removing an individual from the territory of a state without an extradition process or judicial oversight violates that individual's right against arbitrary detention and as demonstrated in the post 9-11 rendition cases led to abuse and secret detentions. (Khaled al-Masri, a German national was transferred to CIA custody and held in Afghanistan where he alleged he was abused until U.S. officials realized that his capture was a mistake and released him in Albania. Abu Omar was captured from the streets of Italy and sent to Egypt where he alleged he was tortured. CIA agents responsible for his abduction were convicted for kidnapping in abstentia in Italy in 2009).
The debate about what to do with terrorism suspects not captured in a theater of combat is not new, but international law provides guidance. The international law of armed conflict, involving two or more states, allows the detaining authority to detain an individual with minimum legal processes until hostilities end. The Geneva Conventions does obligate the detaining authority not to remove civilians from occupied territory, to protect Prisoners of War, or, under Common Article 3, to provide certain protections to all prisoners detained in armed conflict. Whereas under the law of non-international armed conflict, which is not a war between two states, international human rights law imposes substantive and procedural constraints on a state's authority to detain and allows detention only if it is grounded in law, is not arbitrary, and subject to judicial review. Transfer of individuals from one country to another must be done through judicial oversight.
Putting aside the legality of authorizing future transfers to indefinite detention in Afghanistan, from a policy perspective such a decision would be an affront to the Afghan people and government whose sovereignty the United States recognizes and has been supporting, and would further damage U.S. counterinsurgency strategy of wining support of the Afghans against the Taliban.
Individuals captured anywhere outside Afghanistan should be lawfully transferred if evidence exists for either trial in U.S. federal courts, released or repatriated. They should not be rendered to a country where they are not citizens for indefinite detention and beyond the rule of law. Afghanistan should not be used as America's playground to warehouse alleged unsavory characters because the U.S. government chose not to gather the necessary evidence for fair prosecutions in U.S. courts or just needs these alleged bad guys off the streets. The United States should not be in the business of kidnapping and promoting global lawless enclaves.
Sahr Muhammedally is a humanrights lawyer based in London.