Open Society Institute Recommendations for U.S. Detention Policy in Afghanistan

The Open Society Institute presented the following recommendations to the U.S. Department of Defense, Department of State, and International Security Assistance Force officials on November 11, 2009. OSI also regularly meets with U.S. officials in Afghanistan to discuss the implementation of U.S. detention policy, and will continue to monitor and analyze detention policy and practices throughout 2010.

For the past eight years, U.S. and Afghan detention policies have been flawed.

The Open Society Institute calls for a transparent, humane, and legitimate detention system that will give all individuals a genuine ability to contest their innocence and can accurately determine who should remain in detention and who should be set free. With troop levels set to increase, a new U.S. detention facility scheduled to open, and a commitment by the international community to strengthen the rule of law, improving detention policy in Afghanistan is now more important than ever.

Three major problems currently undermine U.S. and domestic detention policy and rule of law in Afghanistan:

• Detainees lack a genuine and transparent process which allows them to challenge evidence, present their own case for innocence, and obtain their freedom in a timely manner. Often, they do not know why they are being detained and do not have access to legal representatives.
• Insurgents are routinely able to bribe their way to freedom or are released due to poor quality investigations and lack of basic evidence collection.
• The Afghan people see the U.S. and Afghan detention systems as illegitimate, which undermines efforts by the Afghan government and its allies to strengthen the rule of law.

OSI recommends the following changes:

Monitoring and Transparency

Allow local and international nongovernmental organizations such as the Afghanistan Independent Human Rights Commission (AIHRC) to regularly monitor detainees and their conditions of confinement at International Security Assistance Force (ISAF) and Operation Enduring Freedom (OEF) detention facilities. Also allow these groups to observe Detainee Review Board proceedings.

Ensure that the International Committee of the Red Cross (ICRC) is granted physical access to all ISAF and OEF detainees and detention facilities in Afghanistan.

Ensure that family members of detainees are promptly notified of the location of their relatives. The ICRC contributes significantly to detainee-family communication in Afghanistan, but there remain gaps where families are not notified for long periods of time.

Rights, Fairness, and Accuracy

Ensure that new U.S. detention policies in Afghanistan allocate sufficient resources and expertise to review evidence and seek out witnesses connected to detainee cases. For purposes of transparency and legitimacy, also establish a mechanism to declassify as much evidence as possible and limit reliance on classified information when possible.

Provide U.S.-held detainees with legal representatives instead of personal representatives. Establish a system that provides these legal representatives clearance to review classified information. This will enhance the fairness and accuracy of the review process.

Explicitly prohibit the use of coerced evidence at Detainee Review Board proceedings.

Improve ways to accurately collect, corroborate, and analyze intelligence. To do this, U.S. soldiers in Afghanistan need to be better trained and equipped to gather more conclusive forms of evidence; criteria should be improved to ensure intelligence provided by informants is verified before being acted upon; and international forces should seek to corroborate information and intelligence with Afghan security forces. Reliance on malicious informants and poorly qualified interpreters at points of capture and in interrogations must end.

Afghan Participation, Partnership, and Reform

Permit Afghan judges to participate in Detainee Review Board proceedings and permit Afghan civil society groups to formally contribute to the work of the new task force focusing on detention policy in Afghanistan (Task Force 435).

Provide resources to train Afghan lawyers, judges, and Afghan National Security Forces (ANSF) to ensure respect for Afghan law and the rights of detainees. This should include increasing the capacity of ANSF to conduct thorough investigations, gather evidence, conduct interrogations, and treat detainees in accordance with Afghan law and international human rights standards. Specific focus should be placed on reforming the practices of national security prosecutors operating under the Office of the Attorney General and engaging in rule of law reforms within the National Directorate of Security.

Work with Afghan prosecutors and law enforcement officials to effectively gather and document information and evidence to assist prosecutions in Afghan domestic courts. Increasing the quality of OEF/ISAF investigations will increase admissible evidence in Afghan criminal courts and reduce the potential for bribery of judges, prosecutors, and other government officials. OEF/ISAF countries should gather and document evidence in a uniform manner. Triplicate copies of evidence files should be made to further mitigate corruption and evidence tampering. OEF/ISAF should also explore the possibility of international military personnel testifying in Afghan criminal courts, as was similarly done in Iraq.

Work more closely with Afghan security forces to conduct joint operations; cease unnecessary destruction of property (which often belongs not just to the suspect but to a larger family unit that is also thereby alienated); and end the use of informal and clandestine U.S.-trained Afghan security forces that are responsible for inhumane treatment and are rarely held accountable. 

These recommendations are based on the work of Open Society Institute researchers who have engaged civic activists, lawyers, human rights organizations, detainee family members, former detainees, and others in Afghanistan to gauge the impact of U.S. and Afghan detention policies in some of the country’s most volatile areas.