After Guantanamo

By JOANNE MARINER
Wednesday, Feb. 27, 2008

By groups of five, six, 12 and sometimes even 18, the prisoners at Guantanamo are slowly being sent home. Quietly, without any of the fanfare that accompanied their arrival, they're put on planes and returned to their countries of origin.

Nobody says anything about the "worst of the worst," or about the possibility that they might chew through the planes' hydraulic lines, a fear expressed six years ago when many of them were first sent to Cuba. Instead, the Pentagon sends out a short news release -- "Detainee Transfer Announced" is the heading -- that congratulates the U.S. government on its decision not to hold detainees "any longer than necessary."

No apologies; no compensation; no suggestion of a mistake. Just a briefly-stated explanation that the person's detention is not necessary.

The Shrinking Group of Afghans

Afghans were once the largest group of prisoners at Guantanamo, with over 200 Afghan men held there; now there are only about 34 left. Since last April, however, the reception awaiting Afghans returning from Guantanamo has changed. While in the past they were released, Afghans sent back to Afghanistan in recent months face further incarceration.

After two years of construction, and more than a year of training Afghan guards, the United States last year unveiled the newly-renovated Block D of Afghanistan's Pol-e charkhi prison. The new prison, now known as the Afghan National Detention Facility (ANDF), is run by the Afghan government, at least in theory. But the US paid for its construction (those who have been inside say it looks very much like a US prison); the US trained the guard staff (Afghan Ministry of Defense personnel), and the US now claims to have a "mentoring" relationship with the Afghans who are in charge of it.

Thirty-two Afghans have now been transferred from Guantanamo to the ANDF, and more than 150 others have been moved there from the US detention facility at Bagram, in Afghanistan. With some 200 detainees having been formally transferred from US to Afghan custody in less than a year, the pressing question is this: What does this "mentoring" relationship mean?

Does "mentoring" mean that once a prisoner enters the ANDF he is under the sole dominion and control of the Afghan government, and his fate is in Afghan hands? Or does it mean that the US transfers physical custody of the person, but still retains some control -- or authority, or influence -- over whether and when that person is released?

A Guantanamo Annex?

Exposure to US detention practices gives cause for cynicism, but there are legitimate reasons for the US to build an Afghan prison and train an Afghan guard force. Prison conditions at the ANDF are said to be notably better than those at the rest of Pol-e charkhi and elsewhere in Afghanistan. Even more importantly, prisoners at the ANDF have not complained of violent abuse.

Were it not for the ANDF, detainees at Guantanamo and Bagram might face transfer to the custody of the National Directorate of Security (NDS), Afghanistan's notoriously vicious intelligence service. European countries whose militaries are active in Afghanistan, as well as Canada, have no detention capacity of their own; the prisoners they arrest are handed over to the NDS. Last year, a number of these prisoners reported torture in NDS custody (which led Canada, in November, to claim to have discontinued such transfers).

Former NDS detainees have reportedly described being badly beaten, confined in small cages in basement jails, and hung upside down from metal hooks. According to a respected Afghan human rights activist, the NDS (then known as the KhAD) was synonymous with torture during the Communist era. "It's still the same organization, and it uses the same methods," he told me recently. "Torture is routine."

With a newly-selected and -trained guard force made up of military personnel, not NDS officers, the ANDF is not an NDS dungeon. Still, the question remains of whether it is, to some extent, a Guantanamo annex. Afghans who have been transferred from Guantanamo to the ANDF have said that American personnel are present and active in the facility.

The Legal Process for ANDF Detainees

The key question, of course, is not just who opens and closes cell doors, but who makes the meaningful decisions about release. For a long time -- even well after the ANDF opened -- it was entirely unclear what kind of legal process detainees there would be afforded. Knowledgeable insiders claimed that not only was the US creating a new prison, it was also trying to establish an Afghan version of Guantanamo's "enemy combatant" detention procedures.

But after much uncertainty, debate, and further uncertainty, detainees at the ANDF are now being tried in the civilian justice system. Starting last October, detainees have been prosecuted for crimes listed in Afghanistan's Law of Internal and External Security. While the proceedings are held in a special courtroom on the ANDF premises, the judges rotate in from the regular civilian courts.

About 36 trials have been held to date. In terms of outcomes, the results of these prosecutions have been quite mixed: Detainees have been acquitted; others have received sentences of time served; and still others, in a small handful of cases, have received seven, fifteen, and 20-year sentences.

In terms of process, however, the trials have been pretty uniformly bad.

"It's a very ... efficient system," a close observer of the proceedings told me, noting that most trials lasted one or two hours at most. Others said that a half hour to an hour was more typical, and that proceedings consisted of argument by prosecutors and defense counsel, but no real evidence: no witnesses, no forensic evidence, perhaps a photo or two, with no discussion of chain of custody or other legal issues. (Indeed, in one of the first ANDF cases, with ten defendants, there were not even defense lawyers. The defendants who were convicted, however, have lawyers now and are appealing their convictions.)

Hearsay -- as in, "the Americans said ... " -- is reported to make up a good part of the prosecutors' cases. And while the prosecutors and judges generally speak Dari, the language of Afghanistan's Tajik population, the Pashtun-speaking defendants may not understand what is being said, and may not have the benefit of translation.

These trials are hardly fair. Unfortunately, they are probably no better or worse than the Afghan norm. After so many years of war and bad government, the country's justice system is a shambles. "A decade ago there were only a few dozen registered defense lawyers in the whole country," an Afghan human rights activist told me, explaining part of the problem. "Now we have more than 400, which is progress, but many of them lack skills and don't present a vigorous defense."

What Happens After Guantanamo

Guantanamo's days appear to be numbered, just like those of the administration that gave rise to it. While we should applaud the reduction in Guantanamo's detainee population, and look forward to the day the facility closes, we should not ignore the fate of the prisoners who have been returned home. What happens after Guantanamo counts too.


Joanne Mariner is a human rights attorney. Her previous columns on Guantanamo, the detainee cases and the "war on terrorism" are available in FindLaw's archive.

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