The following originally appeared on the Daily Beast.
Almost four years ago, near the border between Afghanistan and Pakistan, United States troops took into custody a 14-year-old Pakistani citizen named Hamidullah, who has been held ever since in a cell at the U.S.-controlled Bagram prison near Kabul. According to Hamidullah, in 2011, U.S. authorities cleared him for release.
Last month, when the governments of the United States and Afghanistan announced that the prison will be handed over to Afghan control in the next six months, there was an ominous silence about what would become of Hamidullah and 50 or so other detainees at the prison who are not citizens of Afghanistan.
The transfer of the Bagram prison to Afghan control may finally result in a trial for the Afghan citizens who have been detained there, many of them for years, without knowing if or when they would ever have their day in court. But Bagram prisoners who are nationals of Pakistan and other countries are at risk of sliding deeper into a legal limbo or being transferred into torture.
Justice Project Pakistan is a Lahore-based legal-action charity that provides legal support to prisoners facing the death penalty, as well as Pakistani citizens detained in the war on terror. The organization is representing nine Pakistani detainees at Bagram. It is working with these prisoners’ families, pressing for information about their status and conditions of confinement, for the establishment of normal communication channels, and for a resolution of their detention, either by trial or release. So far, U.S. authorities have completely denied Justice Project Pakistan lawyers access to their clients, preventing them from making even the simplest inquiries necessary to assist them and their families.
The U.S. authorities at Bagram have also not provided Hamidullah and the other detainees or their families with clear grounds for their detention. They have never been told what circumstances must arise for them to be able to challenge their detention in a court of law or even when such circumstances might arise. The only legal process afforded them—a military review board—has fallen well short of basic fair-trial standards.
After examining the cases of some Bagram detainees,, a U.S. review board has recommended their release—Hamidullah says he is among them—either because they should not have been detained in the first place or because they no longer pose a threat. Yet high-level political stalemate, particularly between the United States and Pakistan, has prevented the release of even these individuals to their homes and their families.
The agreement between the United States and Afghanistan on the transfer of detention authority is an opportunity to finally clean up this legal mess and put an end to a disgraceful, unjust situation. Now is the time to set out a proper legal framework for detention, including guarantees of due process and a fair trial. The United States must also meet its legal obligation not to transfer any detainee in its custody to detention in a country where there will be a real risk of torture. This is a serious concern when it comes to transferring detainees to the custody of Afghan authorities, who have a record of torture. Just last month, a report by the Open Society Foundations and the Afghanistan Independent Human Rights Commission detailed widespread torture of persons held in detention by the Afghan authorities.
The governments of the United States and Afghanistan should agree either to the transfer of non-Afghan detainees, including Hamidullah and others represented by Justice Project Pakistan, to the Afghan authorities for final prosecution or for repatriation to their home countries. If the U.S. government moves forward with repatriation of detainees, it must transfer them in a manner that ensures such individuals are not put at risk of abuse. The United States should also clearly and expeditiously communicate to other states what specific measures it believes they should adopt to secure the repatriation of non-Afghan detainees.
The Pakistani government also has a responsibility to its citizens held by the U.S. Pakistan’s own courts have said as much, and ordered the government to do more to secure the release of its citizens and ensure that no agreement to transfer Pakistani citizens to Afghan authorities puts them at risk of torture. Should the United States and Pakistan move forward with repatriation, the Pakistani government must also spell out what will happen to these individuals, and if not immediately released, how their cases will be adjudicated and their rights protected.
After so many years of waiting, Hamidullah and other non-Afghan detainees in Afghanistan deserve to have access to their lawyers, and their cases resolved. If the authorities have no evidence against them, they should be released immediately. If there is evidence of wrongdoing against them, they should be tried. Holding them indefinitely or transferring them to torture are not options.