Joelle Laszlo
April 30, 2009
TRIALS INSTEAD OF TRIBULATIONS: HOW BRINGING GUANTANAMO DETAINEES TO JUSTICE
IN AFGHANISTAN CAN STRENGTHEN THE RULE OF LAW AND IMPROVE THE
GREATER POST-CONFLICT RECONSTRUCTION EFFORT
I. Introduction
On January 22, 2009, President Barack Obama issued an executive order (Order)
directing the immediate review of the status of every individual currently detained at the
Guantanamo Bay Naval Base, and ordering the prompt closure of the Guantanamo detention
facilities.1 Pursuant to the President’s Order, within the foreseeable future every individual
detained at Guantanamo is to be reviewed and processed, and those eligible for criminal trial in
U.S. courts ostensibly brought to domestic detention facilities and before the proper forum (or
fora).2 It is not entirely clear, however, what the disposition should be of those individuals who
cannot be brought to trial in the United States (for a range of reasons, including lack of evidence
and tainted evidence),3 or for whom trial and potential detention in their countries of origin or
elsewhere would be more appropriate.
One option, of course, is to return these individuals to their own countries for
adjudication and subsequent disposition, and such transfers have already taken place in
considerable numbers. For example, under an arrangement between the United States and
Afghanistan, nearly 200 Afghans formerly detained at Guantanamo have been brought to trial
before Afghanistan’s post-Taliban criminal justice system.4 One human rights organization that
1
Exec. Order No. 13,492, 3 C.F.R. 13492 (2009), available at
http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/ [hereinafter EO 13492].
2
See id.
3
See, e.g., Mark Kukis, How to Close Guantánamo: A Legal Minefield, TIME, Nov. 11, 2008, available at
http://www.time.com/time/nation/article/0,8599,1858205,00.html; Matthias Gebauer, John Goetz & Bitta Sandberg,
The Last Days of Guantanamo: An American Nightmare Could Soon End, SPIEGEL ONLINE, Dec. 23, 2008,
http://www.spiegel.de/international/world/0,1518,597991,00.html.
4
See KEN GUDE, CTR. FOR AM. PROGRESS, HOW TO CLOSE GUANTÁNAMO 5-6 (2008),
http://www.americanprogress.org/issues/2008/06/pdf/guantanamo.pdf.
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observed some of these proceedings, however, found a marked failure to adhere to international,
or even Afghan, fair trial standards.5 The conditions under which these individuals have been
detained have been similarly disparaged.6
This paper will argue that despite these apparent shortcomings, the United States and the
international community should continue to support the process to establish a criminal justice
system in Afghanistan that meets international human rights standards, by keeping the country’s
developing system integrated in the effort to adjudicate offenders captured during combat
operations. In particular and at a minimum, the Afghan nationals currently detained at
Guantanamo who will not be subject to criminal justice in the United States should be repatriated
to Afghanistan and, if legitimate charges may be raised and pursued, brought before its courts.
Detainees not of Afghan origin but who legitimately may be subject to detention and criminal
prosecution in Afghanistan should also be transferred to its custody and addressed by its courts.
Rather than establish parallel, foreign-administered facilities for detention and prosecution,7 the
United States and the international community should focus their efforts and assistance on the
domestic development of more humane prisons, and fairer judicial processes and procedures, to
support the establishment of a viable criminal justice system in post-conflict Afghanistan. Such
efforts will not only contribute significantly to the reinstitution of the rule of law in Afghanistan,
but will increase the legitimacy and standing of broader international efforts to counter terrorism.
5
See generally HUMAN RIGHTS FIRST, ARBITRARY JUSTICE: TRIALS OF BAGRAM AND GUANTÁNAMO DETAINEES IN
AFGHANISTAN (2008), http://www.humanrightsfirst.info/pdf/USLS-080409-arbitrary-justice-report.pdf [hereinafter
ARBITRARY JUSTICE].
6
See, e.g., id. at 5-6; GUDE, supra note 4, at 5.
7
See, e.g., GUDE, supra note 4, at 29-31.
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This analysis begins by describing the current detainee population at Guantanamo,8
including the range of transgressions for which these individuals have been apprehended, and the
timeline under the President’s recent executive order within which decisions about their
disposition are to be made. The various options for disposition will then be addressed, including
the two most commonly recognized in principle (though still unsettled in substance): criminal
prosecution in the United States, and transfer to other countries for prosecution or release. Part
III will focus on the prospect of transferring Guantanamo detainees to Afghanistan for trial and
incarceration where appropriate. It will begin with a general review of the status of the rule of
law in the country, and observations of recent adjudications involving offenders captured during
combat operations. This Part will then discuss how U.S. and international support should be
enlisted to facilitate the employment of the developing Afghan criminal justice system in the
disposition of Guantanamo detainees. Part IV will address the broader implications of this
approach, including expanding international involvement in efforts to counter terrorism abroad,
and restoring the credibility of the United States’ role in directing these efforts.
II. The Detainee Population at Guantanamo Bay and Options for Disposition
Until March of 2006, when the Associated Press won a Freedom of Information Act
lawsuit against the Department of Defense, the Federal government had never publicly issued a
complete list of the individuals detained at the Guantanamo Bay facilities.9 Even today, official
tallies are hard to come by. According to a report issued in January of 2009 by the Center for
Constitutional Rights (CCR), a non-profit human rights advocacy organization, approximately
250 men remain at Guantanamo, out of nearly 800 imprisoned there over its seven years of
8
A number of different terms have been used to refer to the individuals incarcerated at Guantanamo over the years.
For the sake of convenience alone, the term “detainee” will be employed throughout this paper.
9
See, e.g., U.S. Reveals Details on Guantanamo Detainees After AP FOIA Lawsuit, Associated Press, Mar. 7, 2006,
available at http://www.ap.org/FOI/foi_030706a.html.
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April 30, 2009
operation.10 CCR and similar organizations have undertaken extensive efforts to determine both
the demographic breakdown of the detainee population, and the offenses with which they have
been charged.11 What follows is a cursory review of their findings.
a. Ethnic Composition
CCR contends that “[t]he single most important determinant of whether an individual
remains at Guantanamo in 2009 is his country of origin.”12 This is because, as will be addressed
below, the primary barriers to transfer from Guantanamo are concerns that the proposed
destination countries either lack secure detention procedures and centers, or, at the opposite end
of the spectrum, will subject transferees to conditions of detention amounting virtually or
literally to torture.13 This is just one of many examples that demonstrate how resolving the status
of the Guantanamo detainees poses as many political challenges as it does legal.
According to CCR’s assessment, nearly forty percent (or about twenty-five) of the men
detained at Guantanamo are of Yemeni origin.14 Another twenty-five are from Afghanistan, and
fifteen are from Saudi Arabia.15 CCR estimates that twenty-nine other countries are currently
represented by the detainee population, including China (twenty-two detainees), Morocco
(fifteen detainees), and Canada (one detainee).16 As the CCR and others assert, comparing the
charges levied against the individuals who remain in custody with the transgressions of those
10
CTR. FOR CONSTITUTIONAL RIGHTS, CLOSING GUANTÁNAMO AND RESTORING THE RULE OF LAW 1 (2009),
http://ccrjustice.org/files/12.01.09_CCR%20Report_Closing%20Guantanamo.pdf [hereinafter CLOSING
GUANTANAMO]. No women have ever been detained at Guantanamo.
11
Though I will not refer to it specifically in the discussion that follows, it would be thoughtless not to mention the
searchable detainee database compiled by The New York Times and posted at
http://projects.nytimes.com/guantanamo. This is but one example of the extensive research undertaken and
published by various public interest organizations in the United States and abroad to provide some sense of the
detainee population at Guantanamo. The choice to refer to only a handful of sources in the forthcoming discussion
was made solely out of convenience.
12
Id. at 2.
13
See infra Part II.d; see also GUDE, supra note 4, at 7-9; CLOSING GUANTANAMO, supra note 10, at 3.
14
CLOSING GUANTANAMO, supra note 10, at 3.
15
Id.
16
Id. at 5.
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transferred out of Guantanamo, it is clear that the nature of one’s alleged actions is not the
determinative factor – and in some cases not even relevant to – one’s continued detention there.17
b. Basis for Detention and Country of Apprehension
It should come as no surprise that details about the alleged offenses and the
circumstances surrounding the apprehension of the individuals detained at Guantanamo have
been just as difficult to obtain as their demographics. The Department of Defense issues a press
release every time formal charges are levied against a Guantanamo detainee under the Military
Commissions Act of 2006,18 but the majority of detainees have not been (or never were) so
charged.19 In 2004, after the Supreme Court’s decisions in Rasul v. Bush20 and Hamdi v.
Rumsfeld,21 which conferred certain rights and protections of the U.S. civilian justice system to
Guantanamo detainees, the Department established a system of Combatant Status Review
Tribunals (CSRTs) and yearly Administrative Review Boards (ARBs) designed to determine
whether detainees had properly been classified as “enemy combatants.”22 Though the
Department has now published reports from many CSRTs and ARBs,23 such ease of access to
detainee information represents the exception more than the rule. Furthermore, among the
substantive measures required by the President’s executive order is the assembly of “all
17
See, e.g., id. at 1-2.
A list of Defense Department press releases regarding detainee transfers is available at
http://www.defenselink.mil/news/nrdgb.html.
19
See, e.g., GUDE, supra note 4, at 7. The organization Human Rights Watch maintains a database of information on
the individuals against whom charges have been brought at http://www.hrw.org/features/guantanamo.
20
542 U.S. 466 (2004) (holding that U.S. civilian courts have jurisdiction over detainee habeas corpus petitions).
21
542 U.S. 507 (2004) (holding that citizen and non-citizen detainees are entitled to certain due process protections).
22
See, e.g., Gordon England, Dep. Sec’y of Def., Memorandum for Secretaries of the Military Departments,
Chairman of the Joint Chiefs of Staff, and Under Secretary of Defense for Policy: Implementation of Combatant
Statue Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba,
July 14, 2006, available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf; Gordon
England, Dep. Sec’y of Def., Memorandum for Secretaries of the Military Departments, Chairman of the Joint
Chiefs of Staff, and Under Secretary of Defense for Policy: Revised Implementation of Administrative Review
Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba, available at
http://www.defenselink.mil/news/Aug2006/d20060809ARBProceduresMemo.pdf.
23
For example, a comprehensive set of transcripts, documents, and other reports is now available at
http://www.defenselink.mil/news/Combatant_Tribunals.html .
18
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information in the possession of the Federal Government that pertains to an individual currently
detained at Guantánamo and that is relevant to determining the proper disposition of any such
individual.”24 Clearly the new Administration dos not intend to rely solely on the determinations
previously made by the CSRTs and ARBs about whether it is appropriate to continue to hold the
men currently detained at Guantanamo.
One again, in the absence of comprehensive, official reports about the men taken into
custody and held at Guantanamo, a number of human rights and news organizations have
launched independent efforts to amass and consolidate as many details as possible about the
detainees’ alleged crimes. In April of 2007, for example, CCR issued a report entitled Faces of
Guantánamo that purported to describe the baseless claims levied against twenty-six individuals
then in custody, which ranged from their being al Qaeda officials and/or providing unlawful
support to the former Taliban government, to plotting to blow up the U.S. embassy in Sarajevo.25
CCR also cited a study of CSRT records conducted in 2006 by two civilian lawyers defending
Guantanamo detainees, which found that approximately 66% of the detainee population at that
time had been arrested either in Pakistan or by Pakistani authorities.26 According to the study
(and others), the primary significance of this statistic was that these individuals “were handed
over to the United States at a time in which the United States offered large bounties for capture
of suspected enemies.”27 It will be suggested below that the place of apprehension is also
24
EO 13492, supra note 1.
See generally CTR. FOR CONSTITUTIONAL RIGHTS, FACES OF GUANTÁNAMO: GUANTÁNAMO’S MANY WRONGLY
IMPRISONED (2007), http://ccrjustice.org/files/report_FacesOfGuantanamo.pdf [hereinafter GUANTANAMO’S
WRONGLY IMPRISONED].
26
Mark Denbeaux et al., REPORT ON GUANTANAMO DETAINEES: A PROFILE OF 517 DETAINEES THROUGH ANALYSIS
OF DEPARTMENT OF DEFENSE DATA 14 (2006), http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf.
27
Id. at 3. See also GUANTANAMO’S WRONGLY IMPRISONED, supra note 25, at 1 (“In the chaos of wartime, many in
Afghanistan and Pakistan were sold for money or as part of tribal or local grievances”); Tom Lasseter, Day 1:
America’s Prison for Terrorists Often Held the Wrong Men, MCCLATCHY NEWSPAPERS, Jun. 15, 2008,
http://www.mcclatchydc.com/detainees/story/38773.html (“The majority of the detainees taken to Guantanamo
came into U.S. custody indirectly, from Afghan troops, warlords, mercenaries and Pakistani police who often were
25
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significant to determining how many detainees among the current Guantanamo population may
be appropriately returned to Afghanistan for disposition through its criminal justice system.28
It should also be noted, and no one denies, that some of the men currently and previously
detained at Guantanamo certainly have been involved in the planning or execution of terrorism
activities and other crimes.29 Even knowing that a great majority of individuals were wrongfully
detained should not prevent a thorough and thoughtful process to determine how the remaining
Guantanamo detainees should be addressed. Nor should the fact that there is now a standing
deadline for making these determinations.
c. Timetable for Determining Disposition
Pursuant to the executive order issued by President Obama in January of 2009, the
detention facilities at Guantanamo must be closed no later than January 22, 2010.30 Beginning
on the date of the Order, “on a rolling basis and as promptly as possible,” the consolidated case
file of each detainee is to be reviewed by a group consisting of representatives from various
Cabinet offices, and employees of agencies operating in the national security, intelligence,
military, and related areas, to determine the most appropriate disposition for each individual
(e.g., prosecution in the United States, transfer, release, or some other “lawful means” of
disposition), and how it may be effected.31 The Order does not mandate that all assessments and
paid cash by the number and alleged importance of the men they handed over. Foot soldiers brought in hundreds of
dollars, but commanders were worth thousands.”); CLOSING GUANTANAMO, supra note 10, at 1 (“Fewer than 10
percent [of the detainees] were captured by the United States. The remainder were turned over . . . at a time when
the U.S. military was dropping bounty fliers promising ‘wealth and power beyond your dreams.’”).
28
See infra Part II.d.iii.
29
The biographies of fourteen “High Value Terrorist Detainees,” all of whom are currently being held at
Guantanamo, are available on the Defense Department’s website at
http://www.defenselink.mil/pdf/detaineebiographies1.pdf. Khalid Shaikh Mohammed, one of the alleged
“masterminds” of the September 11th attacks, is among them. See, e.g., GUDE, supra note 4, at 7.
30
EO 13492, supra note 1.
31
Id.
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dispositions be fully carried out by January of 2010, but it does stress that the necessary actions
are to be taken as promptly and efficiently as possible.32
Though, as mentioned, the Order specifies four types of disposition that may result from
the detainee review process, human rights organizations and policy commentators have
expressed concern that it stops just short of closing the door completely on “the entire system of
detention without trial” that Guantanamo represents.33 In particular, critics argue that the Order
potentially permits the continued “preemptive detention” of individuals who for one reason or
another cannot be prosecuted, transferred, or released.34 In order to assess this claim, an
examination of the proposed options for detainee disposition is required.
d. Options for Disposition
Not surprisingly, much has been written within the past year about how the Obama
Administration should handle the remaining Guantanamo detainees.35 In a comprehensive report
issued in the months before the presidential election, Ken Gude of the Center for American
Progress, a nonpartisan policy research organization, offered that with regard to potential
disposition, there are three distinct categories of detainees at Guantanamo: (1) those slated for
criminal prosecution in the United States; (2) those selected for transfer to a third country for
prosecution or release, including a subset group whose actual transfer may not feasible because
of security or human rights concerns; and (3) those who cannot be tried or transferred, but who
are considered too dangerous to release.36 Even though, when addressing specific cases, there
Id. (“To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantánamo
should precede the closure of the detention facilities at Guantánamo.”)
33
Kenneth Roth, Human Rights Watch, Obama’s Prisoners Dilemma: A Blueprint for Dismantling Guantanamo
(Mar. 13, 2009), http://www.hrw.org/en/news/2009/03/13/obamas-prisoners-dilemma.
34
See, e.g., id.
35
See, e.g., GUDE, supra note 4; HUMAN RIGHTS FIRST, HOW TO CLOSE GUANTANAMO: BLUEPRINT FOR THE NEXT
ADMINISTRATION (2008), http://www.humanrightsfirst.org/pdf/080818-USLS-gitmo-blueprint.pdf [hereinafter
BLUEPRINT]; CLOSING GUANTANAMO, supra note 10.
36
See GUDE, supra note 4, at 6-9.
32
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may be disagreement at the margins as to who falls into the first two categories, the categories
themselves are generally agreed to be valid among both policymakers and commentators.37 The
third category, however, is not nearly as well received.
Once it became clear that facilities like the one at Guantanamo (as well as the secret
“CIA black sites” where an unknown number of individuals were ostensibly interrogated through
methods that constituted torture38) could and would no longer remain in operation, it seems the
debates about their closure were supplanted by discussions of the validity of “preventive
detention,” or the incarceration of individuals against whom no formal charges may be brought,
but who were originally detained as “enemy combatants” and who are expected to return to
hostilities if released.39 Critics of the proposition that the United States may continue to hold
domestically some Guantanamo detainees for reasons of preventive detention argue that such a
practice would undermine all positive advances achieved by closing the facility, and would in
fact “[create] a state-side replica of the administrative detention regime at Guantanamo.”40
37
See, e.g., EO 13492, supra note 1; Tom Malinowski & Richard A. Clarke, Restoring Moral Authority: Ending
Torture, Secret Detention, and the Prison at Guantanamo Bay, 618 ANNALS AM. ACAD. POL. & SOC. SCI. 148, 155
(2008); David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil Over the Guantanamo Military
Commissions, 12 LEWIS & CLARK L. REV. 131, 193-94 (2008).
38
See, e.g., Press Release, Ctr. for Constitutional Rights, CCR Praises Obama Orders, Cautions Against Escape
Hatch for Torture (Jan. 22, 2009), available at http://www.ccrjustice.org/newsroom/press-releases/ccr-praisesobama-orders%2C-cautions-against-escape-hatch-torture. On the same day that President Obama issued the Order to
close Guantanamo, he signed another executive order requiring the CIA to “close as expeditiously as possible any
detention facilities that it . . . operate[d] and . . . not operate any such detention facility in the future.” Exec. Order
No. 13,491, 3 C.F.R. 13491 (2009), available at
http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/.
39
See, e.g., MICHAEL JOHN GARCIA ET. AL., CONG. RESEARCH SERV., CLOSING THE GUANTANAMO DETENTION
CENTER: LEGAL ISSUES 1 (2009), available at http://assets.opencrs.com/rpts/R40139_20090122.pdf [hereinafter
GUANTANAMO LEGAL ISSUES].
40
BLUEPRINT, supra note 35, at 4. See also CLOSING GUANTANAMO, supra note 10, at 2 (“The administration must
reject the notion that there is a third category of prisoners who are dangerous but who cannot be charged. . . . [S]uch
detention is unnecessary and would be viewed domestically and internationally as an unacceptable continuation of
Guantánamo.”); Malinowski & Clarke, supra note 37, at 155 (“It would create yet another new and untested system
for dealing with detainees, which could be tied up by court challenges and fail as miserably as the present ad hoc
system. It could look to the world like little more than an extension of Guantanamo to U.S. soil.”)
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Proponents claim that preventive detention is perfectly compatible with democratic ideals, and
practiced lawfully by other countries grappling with the threat of terrorism within their borders.41
With no intention to disregard the importance of this debate, a full consideration of it is
beyond the scope of this paper.42 Acknowledging that the Obama Administration must
ultimately decide whether this third category of detainees exists and, if so, how these individuals
should be addressed within the context of a strategy that addresses both security and human
rights concerns,43 the remainder of this paper will discuss the tangible measures that have been
and likely will be employed in the disposition of the Guantanamo detainees who fall into the first
two categories outlined above. In fact, even with regard to these individuals there is no single
agreed-upon approach for disposition, a fact that becomes clear when one turns to the seemingly
straightforward option of criminal prosecution in the United States.
i. Criminal Prosecution in the United States
Out of the roughly 770 men detained at Guantanamo, only three have been tried by
civilian courts in the United States.44 Despite that unsettling statistic, many contend that criminal
trials in U.S. federal courts constitute the most legitimate means for the disposition of detainees
See, e.g., Scott Horton, A New Counter-Terrorism Regime, Harper’s Magazine, July 11, 2007,
http://www.harpers.org/archive/2007/07/hbc-90000485 (“Nations around the world have maintained the essential
features of a liberal democratic society while keeping a regime of preventive, or investigatory detention. . . . The
focus in the coming national debate should be on the evidentiary showing based upon which preventive detention
can be ordered . . . .”); Editorial, Close Guantanamo?, WASH. POST, June 22, 2006, at A28 (“In fighting their own
wars against terrorists, Britain and other countries have relied on preventive detention to hold dangerous militants
who cannot immediately be charged.”) [hereinafter Close Guantanamo?]. Putting a slightly different spin on the
debate, the Congressional Research Service notes that “[w]hile the [preventive] detention of ‘enemy combatants’ is
constitutionally acceptable, the scope of persons potentially falling under this category remains uncertain.”
GUANTANAMO LEGAL ISSUES, supra note 39, at 7.
42
For a thorough treatment of the need for, and potential approaches to the development of, standards under
international law to govern preventive detention, see Monica Hakimi, International Standards for Detaining
Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 YALE J. INT’L L. 369 (2008). For a
considerably less optimistic, but nonetheless realistic, assessment of the historical U.S. approach to preventive
detention, see Jennifer Van Bergen & Douglas Valentine, The Dangerous World of Indefinite Detentions: Vietnam
to Abu Ghraib, 37 CASE W. RES. J. INT’L L. 449 (2006).
43
Or, in the words of the President’s Order, a strategy to “further the national security and foreign policy interests of
the United States and the interests of justice.” EO 13492, supra note 1.
44
See, e.g., Gebauer et al., supra note 3. All three were convicted. See, e.g., id.
41
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against whom legitimate charges may be brought.45 In fact, since the September 11, 2001,
attacks in the United States, dozens of accused terrorists have been prosecuted, convicted, and
sentenced to prison through the federal criminal justice system.46 Federal courts provide a broad
range of potential charges under which alleged terrorist activities may be classified and
redressed.47 District courts observe practices and procedures consistent with international human
rights norms and conventions, in addition to Constitutional due process and equal protection
principles.48 There is also, under the Classified Information Protection Act, an established
procedure for the use and protection of classified information and sources during federal
terrorism trials.49 Finally, for both the short and longer terms, “the prospect of regular [federal]
criminal trials is . . . more likely to result in meaningful international cooperation in gathering
and sharing evidence as well as in the arrest and extradition of identified suspects.”50 In sum, the
U.S. system is a respected and respectable venue for bringing terror suspects to justice.
In fact, it is the integrity and rigorous observation of due process by U.S. courts that is
expected by many to hinder the successful trial of many Guantanamo detainees. At the center of
45
See, e.g., Malinowski & Clarke, supra note 37, at 156; David Glazier, A Self-Inflicted Wound: A Half-Dozen
Years of Turmoil Over the Guantanamo Military Commissions, 12 LEWIS & CLARK L. REV. 131, 198-201 (2008);
GUDE, supra note 4, at 21-25; CLOSING GUANTANAMO, supra note 10, at 3.
46
See, e.g., Malinowski & Clarke, supra note 37, at 156; Glazier, supra note 37, at 198 (citing Ctr. on Law & Sec.,
Terrorist Trial: Report Card: U.S. Edition (Karen J. Greenberg et al. eds., 2006),
http://www.lawandsecurity.org/publications/TTRCComplete.pdf). But see GUDE, supra note 4, at 16-17 (discussing
the significant amount of resources and time required for previous federal terrorism trials).
47
See, e.g., id. at 199-200. According to one study, “104 different offenses have been used to charge individuals in
terrorism-related investigations.” Id. at 199 (citing Ctr. on Law & Sec., Terrorist Trial: Report Card: U.S. Edition
(Karen J. Greenberg et al. eds., 2006), http://www.lawandsecurity.org/publications/TTRCComplete.pdf).
48
See, e.g., Glazier, supra note 37, at 198-99.
49
See, e.g., id. at 199.
50
Id. at 200. Indeed, even a student at the Naval War College observed in 2002 that
the world-respected reputation of United States criminal courts has not been built or maintained for the
benefit of any evil person . . . . The use of an established court system at this critical time should not be
viewed as an action on behalf of accused terrorists, but rather as a representation to needed international
partners that the course of our ship of state is steady, and properly charted for the rough waters ahead.
Id. at 200-201 (citing Record of Trial at 443, United States v. Hicks, No. 04-0001 (Military Comm’n), available at
http://www.defenselink.mil/news/commissionsHicks.html (follow “Record of Trial” hyperlink)).
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the problem is the very real potential for torture-tainted, and thereby unusable, evidence.51 To
quote Mark Kukis, a reporter for Time magazine, “the primary purpose of detaining [people at
Guantanamo] was not to stage trials but to gain usable intelligence through interrogation.
Forming proper criminal cases at this point would be difficult.”52 Undoubtedly, a crucial step in
the consolidation of detainee case files under the President’s Order will be determining how each
element of data in the files was obtained.
The potential for evidentiary barriers to the criminal prosecution of some detainees,
combined with the purported need, addressed above, to continue the practice of preventive
detention,53 has led some to propose Congressional action to create a special national security
court.54 As law professors Jack Goldsmith and Neal Katyal wrote in a 2007 New York Times
editorial, a ‘Terrorists’ Court’ would serve the same specialized function with regard to terrorism
prosecution that bankruptcy, tax, and patent courts serve in their respective areas.55 Its
permanent staff would include “federal judges with life tenure” and “elite defense lawyers” (but
not, apparently, elite prosecutors).56 The court would ensure the safe handling of classified
evidence, ease the burden of terrorism prosecution on civilian courts, and eventually amass a
body of sufficient institutional knowledge to capably toe the line between the protection of
See, e.g., Kukis, supra note 3; Gebauer et al., supra note 3; GUDE, supra note 4, at 24. As the Administration’s
detainee review progresses, it is likely that shocking details about the interrogation methods employed at
Guantanamo will come to light. As it is, many have already emerged: on April 20, 2009, for example, the New York
Times reported that two Guantanamo detainees – Khalid Shaikh Mohammed and Abu Zubaydah – had been
subjected to waterboarding a total of 266 times in 2002 and 2003. Scott Shane, Waterboarding Used 266 Times on 3
Suspects, N.Y. TIMES, Apr. 20, 2009, at A1.
52
Kukis, supra note 3.
53
See supra notes 38-41 and accompanying text.
54
It appears one of the first calls for this approach was made by Jack Goldsmith and Neal Katyal, law professors
from Harvard and Georgetown, respectively, who represented “opposite sides of detention policy debates.” Jack L.
Goldsmith & Neal Katyal, Editorial, The Terrorists’ Court, N.Y. TIMES, July 11, 2007, at A19.
55
Id.
56
Id.
51
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national security and the preservation of individual rights, even in the toughest detainee cases.57
While Goldsmith and Katyal asserted that the new court would merely supplement traditional
criminal processes,58 their proposal was so broad that many commentators came to treat it as a
complete substitution to federal prosecution.59 As one critic of the proposal noted, the
procedural loopholes deliberately embedded in the outline for the new court would subject it to
“the [same] taint associated with the military tribunals.”60
That assertion is a reminder that there is another wrinkle to the debate: though the
President has prohibited any military commission activity during the current disposition review
of Guantanamo detainees, his Order does not declare that military commissions will not be used
in the future.61 Based on their extremely sullied reputation, however, it is unlikely the President
will revive the Bush Administration’s military commissions.62 Though military courts-martial
could be convened in place of the commissions, serious limitations exist as to the kinds of
charges that could be brought in such proceedings.63 Furthermore, as former presidential
advisors Tom Malinowski and Richard Clarke point out, “[t]reating terrorists as criminals
See id. It would not, however, “include the full panoply of criminal protections,” id, and, according to at least one
rendering, would permit the use of prosecutorial evidence whose source the government would not be required to
disclose. See Glazier, supra note 37, at 197-98.
58
Id.
59
See, e.g.,Kukis, supra note 3; Glazier, supra note 37, at 197-98. Nearly a full week after the publication of
Goldsmith and Katyal’s editorial, the Times was still printing numerous impassioned letters for and against the
proposal. See Steven R. Shapiro, Legal Dir., Amer. Civil Liberties Union, Letter to the Editor, N.Y. TIMES, July 16,
2007, at A12; Steven G. Calabresi, Letter to the Editor, N.Y. TIMES, July 16, 2007, at A12; Michael Ratner, Pres.,
Ctr. for Constitutional Rights, Letter to the Editor, N.Y. TIMES, July 16, 2007, at A12; John Sifton, Human Rights
Watch, Letter to the Editor, N.Y. TIMES, July 16, 2007, at A12; John R. Merrill, Letter to the Editor, N.Y. TIMES,
July 16, 2007, at A12.
60
Glazier, supra note 37, at 198.
61
See EO 13492, supra note 1.
62
For an incredibly detailed review of the United States’ use of military commissions since the Vietnam War, see
Glazier, supra note 37. The author provides an especially unflinching assessment of the many faults of the military
commission apparatus established under the Bush Administration in Part IV of his analysis. See id. at 185-93. For a
proposal as to how the military commissions system may be reformed and employed to prosecute detainees not
triable in Federal courts, see The Talking Dog, TD Blog Interview with Darrel Vandeveld, Feb. 20, 2009,
http://thetalkingdog.com/archives2/001262.html.
63
See, e.g., id. at 196-97.
57
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[through federal prosecution], rather than as combatants entitled to military trials, . . . helps deny
them legitimacy.”64 It seems that if there is a group of detainees whose disposition is so
important they will be physically transferred to U.S. soil,65 they should be subject to the fullest
extent of justice that our criminal law will allow.
Though a great deal of space here has been given over to the issue of criminal trials in the
United States, as with preventive detention a resolution will not be offered or found in these
pages. Suffice it to say, as of February of this year twenty detainees at Guantanamo have been
charged with offenses against the United States.66 Even assuming half of the remaining
population falls into the “preventive detention” category, at least a hundred individuals should be
eligible for transfer to other countries for prosecution or release. Though, again, there is no
straightforward approach to exercising this option, there is at least some precedent for it.
ii. Transfers to Other Countries for Prosecution or Release
In the seven years that the Guantanamo Bay detention facilities have been operational,
the Federal government has transferred more than 500 detainees to their home countries or to
third countries for further disposition or release.67 According to the Congressional Research
Service, “[d]ecisions to transfer a detainee to [his home country or] a third country have been
based upon a determination by U.S. officials that (1) the detainee is not an enemy combatant or
(2) while the detainee was properly designated as an enemy combatant, his continued detention
Malinowski & Clarke, supra note 37, at 156. Malinowski and Clarke also note that “no one is complaining that
the men sentenced by federal courts were treated unjustly.” Id. See also BLUEPRINT, supra note 35, at 5 (“Labeling
Guantanamo detainees as ‘combatants’ cedes and advantage to al Qaeda, allowing its members to project themselves
and their followers as warriors engaged in a worldwide struggle against the United States and its allies.”)
65
See, e.g., GUANTANAMO LEGAL ISSUES, supra note 39, at 3, 5-10. Not surprisingly, this plan has created
considerable discontent. For example, according to one “midlevel official,” the notion of transferring detainees to
the military’s Leavenworth, Kansas, maximum security detention center in preparation for trial has raised the specter
of numerous mistrials, subsequent numerous releases, and “100-plus future sleeper-cell members unleashed in
Kansas.” Julian E. Barnes, Guantanamo Closure Not an Easy Prospect, L.A. TIMES, Apr. 14, 2008, at A8.
66
See Human Rights Watch, The Guantanamo Trials, http://www.hrw.org/features/guantanamo (last visited Apr. 19,
2009).
67
EO 13492, supra note 1.
64
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by the United States is no longer warranted.”68 It appears that by default, transferred detainees
have been returned to their country of origin69 – or at least that has been the intention. Many
Guantanamo detainees who have been designated non-combatants and thus cleared for transfer
and release – nearly a quarter of the remaining population – are expected to face governmental
torture or abuse, or at the very least public persecution, if returned to their home countries.70
Though it has not always followed this policy, in 2007 the Department of Defense
announced that in observance of Article 3 of the United Nations Convention against Torture,71 it
would refrain from “repatriate[ing] or transfer[ing Guantanamo detainees] to other countries
where it . . . is more likely than not that they will be tortured.”72 Consequently, by at least one
count there are currently twenty-two Algerians, seventeen Muslim Chinese nationals, and ten
Tunisians at Guantanamo whose combatant status has been lifted, but who cannot be transferred
to their home countries for release because of human rights concerns.73 These are the cases that
have made the mainstream news – the dozen or so others whose transfers have been held over
are reportedly from Libya, Russia, Syria, and Uzbekistan, among other places.74
68
GUANTANAMO LEGAL ISSUES, supra note 39, at 4.
See, e.g., GUDE, supra note 4, at 6; Andrew Gray, US Says 5-10 Percent of Guantanamo Inmates Fight Again,
REUTERS, May 8, 2008, http://www.reuters.com/article/idUSN08511697.
70
See, e.g., id. at 7-8 (setting the number at approximately 65); CLOSING GUANTANAMO, supra note 10, at 5 (setting
the number at 62); Press Release, Ctr. for Constitutional Rights, CCR Praises Obama Orders, Cautions Against
Escape Hatch for Torture (Jan. 22, 2009), available at http://www.ccrjustice.org/newsroom/press-releases/ccrpraises-obama-orders%2C-cautions-against-escape-hatch-torture.
71
The full name of the agreement is the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984).
72
GUANTANAMO LEGAL ISSUES, supra note 39, at 4 (citing Declaration of Joseph Benkert, Principal Deputy Ass’t
Sec’y of Def. for Global Sec. Affairs, U.S. Dept. of Def., executed on June 8, 2007, at para. 3, In re Guantanamo
Bay Detainee Litigation, Case No. 1:05-cv-01220 (D.D.C. 2007)). No doubt the Department was partly motivated to
adopt this course of action in light of policy and scholarly analyses on the issue generated in 2005 and 2006,
including a particularly effective piece by Robert M. Chesney, Leaving Guantanamo: The Law of International
Detainee Transfers, 40 U. RICH. L. REV. 657 (2006).
73
See, e.g., GUDE, supra note 4, at 8. Ken Gude notes that the Chinese Uyghurs, who are part of an “ethnic minority
currently residing in western China that has resisted the control of the Beijing government . . . would certainly face
prison, likely torture and abuse, and probably execution” if returned to their country. Id.
74
See CLOSING GUANTANAMO, supra note 10, at 5.
69
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Entirely different concerns motivate the Defense Department’s unwillingness to transfer
another category of detainee, individuals originally from Yemen: “the likelihood of release or
escape upon their return home.”75 Nearly one-hundred Yemenis are currently being held at
Guantanamo, and while it does not appear the Federal government considers the majority to be
candidates for disposition before U.S. courts, the implication, at least during the Bush
Administration, was that they should remain incarcerated once returned to their home country.76
But Yemen’s prison system is notoriously bad, particularly from the United States’ perspective:
apparently all of the conspirators convicted of the 2000 al Qaeda attack on the U.S.S. Cole
eventually either escaped from jail or were released by Yemeni government officials.77 Two of
the escaped convicts were subsequently captured by coalition forces, and are among the
remaining Yemenis at Guantanamo.78
It should be noted that concerns about mistakenly-released detainees are not entirely
unfounded. In April of 2008, a Kuwaiti who had been transferred from Guantanamo to his
country for trial and was subsequently acquitted and released participated in a suicide bombing
attack against Iraqi security forces.79 The following month, U.S. Defense Secretary Robert Gates
reported that between five and ten percent of detainees released from Guantanamo ultimately reengaged in terrorism-related activities.80 In January of 2009, the Defense Department revised the
figure to nearly eleven percent, based on eighteen confirmed reports of former detainee
participation in subsequent terrorist attacks, and an additional forty-three suspected cases.81 A
75
GUDE, supra note 4, at 8.
See, e.g., Michael Melia, No Way Out for Yemeni Detainees, THE VIRGINIAN-PILOT, Jan. 12, 2008, at A5.
77
See, e.g., Craig Whitlock, Probe of USS Cole Bombing Unravels: Plotters Freed in Yemen; U.S. Efforts
Frustrated, WASH. POST, May 4, 2008, at A01.
78
See, e.g., id. It appears possible that Federal criminal charges ultimately will be levied against those individuals.
79
See, e.g., Josh White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, WASH. POST, May 8, 2008, at A18.
80
See, e.g., Gray, supra note 69.
81
See, e.g., What’s Next for Guantanamo Bay Detainees?, CNN.COM, Jan. 26, 2009,
http://edition.cnn.com/2009/POLITICS/01/26/gitmo.next/index.html.
76
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2008 academic paper re-set the figure closer to six percent.82 International human rights groups
and civilian defense lawyers for detainees have consistently challenged even the more
conservative numbers.83 And regardless of what the detainee recidivism rate actually is, it
certainly seems that the conditions of detention at Guantanamo may be at least partly to blame.
As one report noted, “U.S. detention policies fueled support for extremist Islamist groups. . . .
[S]ome detainees . . . went home far more militant than when they arrived.”84
But the post-Guantanamo story is not without some successes. Perhaps the greatest is the
“reintegration program” employed by the Saudi Arabian government to facilitate the transition of
its nationals from subsistence at Guantanamo to life back at home.85 The Saudi government
initiated the program in 2004, following the coordinated car bombing of the “Western complex,”
a set of apartment buildings in Riyadh housing Americans and European foreigners, in May of
2003.86 In 2006, the Saudi government agreed to extend the program to Saudis released from
Guantanamo, as part of its custodial transfer agreement with the Bush Administration.87 Though
a central focus of the program is “religious reeducation,” it is also sensitive to the immediate,
82
See Paul Taylor, The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks
Posed by Recent Efforts to Depart from Them, 12 TEX. REV. LAW & POL. 223, 254 (2008) (“Under current
procedures, at least thirty detainees who were erroneously released from the Guantanamo Bay detention facility
have since returned to fighting against the U.S. and its allies, attacking American soldiers, and plotting the deaths of
civilians. About a dozen released detainees have been subsequently killed back on the battlefield, while others were
recaptured.”) (citing news reports from 2004 and 2007).
83
See, e.g., White, supra note 79.
84
Lasseter, supra note 27.
85
See, e.g., Josh White & Robin Wright, After Guantanamo, ‘Reintegration’ for Saudis, WASH. POST, Dec. 10,
2007, at A01, available at http://www.washingtonpost.com/wpdyn/content/article/2007/12/09/AR2007120901411.html; Nico Robertson, ‘Jihadi-Rehab’ is a Possibility for PostGitmo, CNN.COM, Jan. 29, 2009, http://edition.cnn.com/2009/WORLD/meast/01/27/saudi.jihadi.rehab/. The
program was also the subject of a December, 2008, documentary film produced under the aegis of the Public
Broadcasting Service, and accessible online at http://www.pbs.org/wnet/wideangle/episodes/from-jihad-torehab/introduction/3834/.
86
See, e.g., Christopher Boucek, Saudi-U.S. Relations Info. Svc., Extremist Reeducation and Rehabilitation in Saudi
Arabia (Aug. 15, 2007), http://www.saudi-us-relations.org/articles/2007/ioi/070817-boucek-reeducation.html. “The
program came about after the Saudi government recognized that locking up the young radicalized Muslims and
mistreating them in jail was counterproductive and served only to foment anger in the Islamic world.” Robertson,
supra note 85.
87
See, e.g., Robertson, supra note 85.
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tangible needs of its subjects, providing a monthly stipend, vocational training, opportunities to
socialize with family members, and, of particular importance, psychological counseling.88 As of
January of 2009, reportedly one-hundred nineteen Saudis had been repatriated from Guantanamo
through the program.89
Though a recent, and unsettling, report indicated that a total of eleven Saudis
“reintegrated” into society after being released from Guantanamo had since left their country and
rejoined terrorist organizations,90 Saudi Arabia’s “Jihadi rehab” program remains promising for
at least two reasons: first, the cooperation it institutes between government entities and spiritual
leaders to reduce terrorist violence by extinguishing the extremist attitudes by which it is fueled;
and second, the collaboration it fosters between individual countries affected in different ways by
terrorist violence, but willing to implement unconventional methods to counter it. A coordinated
and globally-reaching terrorist group like al Qaeda can never be decisively matched by any one
country, not even one as powerful as the United States (or as powerful as it was in the early part
of the decade). Perhaps nothing is more apparent from the most recent years in the “Global War
on Terror” than that it has strayed far in practice from the cooperative ideals of its moniker. And
though that designation is now defunct,91 the need to re-internationalize the overall effort against
terrorist activity has never been greater. International cooperation and participation must be
88
See, e.g., id; Boucek, supra note 86; White & Wright, supra note 85.
CLOSING GUANTANAMO, supra note 10, at 3. CCR has argued that the thirteen Saudis still at Guantanamo should
be transferred to the country and submitted to the reintegration program, id, though, according to the New York
Times, at least two of those individuals are among the remaining “high-value detainees,” and thus are not likely to be
released from U.S. custody any time soon. The New York Times, The Guantánamo Docket – Citizens of Saudi
Arabia, http://projects.nytimes.com/guantanamo/country/saudi-arabia (last visited Apr. 25, 2009). According to the
Times, as many as twenty-one Saudi citizens still remain at Guantanamo. Id.
90
See Wide Angle, From Jihad to Rehab – and Back (Feb. 4, 2009),
http://www.pbs.org/wnet/wideangle/episodes/from-jihad-to-rehab/and-back/4180/. On a slightly cheering note, these
figures may not be reliable. In fact, at least one U.S. policy analyst who has studied the Saudi program argues that
not enough has been done to accurately assess its recidivism rate. Bobby Ghosh, Can Jihadis Be Rehabilitated?,
TIME, Jan. 27, 2009, http://www.time.com/time/world/article/0,8599,1874278,00.html.
91
See, e.g., Scott Wilson & Al Kamen, “Global War On Terror” Is Given New Name, WASH. POST, Mar. 25, 2009,
at A4, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html.
89
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objectives of every future counter-terror initiative and its offshoots, including the disposition of
the current detainee population at Guantanamo.
Practically-speaking, this means that closing Guantanamo should be treated as an
opportunity to increase the involvement of international partners already engaged in the conflict
and post-conflict efforts in places like Afghanistan and Iraq, and to effect new participation with
countries that have not been so engaged. A number of human rights organizations have written
about the need to reach out to European and other nations to accept as refugees detainees who
have been cleared for transfer, but who cannot be returned to their home countries for fear of
torture or other persecution.92 To be sure, the Bush Administration did engage in such
diplomacy, but its efforts were largely hindered by its insistence beginning in the earliest days of
Guantanamo that the individuals held there were the “worst of the worst.”93 To decisively
counter that message, and thus foster the goodwill necessary to get other nations to accept
“former terrorists” within their borders, many have suggested that the United States itself provide
a home to some of the cleared detainees.94 In fact, recent news reports have indicated that this
politically-complicated (and to some, politically-impossible) outcome could soon be reality.95
92
See, e.g., Human Rights Watch, Q&A: Resettlement of Guantanamo Bay Detainees, Feb. 23, 2009,
http://www.hrw.org/en/news/2009/02/23/q-resettlement-guantanamo-bay-detainees; GUDE, supra note 4, at 25-26;
CLOSING GUANTANAMO, supra note 10, at 3; BLUEPRINT, supra note 35, at 6-7.
93
See, e.g., GUDE, supra note 4, at 12.
94
See, e.g., id. at 25; CLOSING GUANTANAMO, supra note 10, at 3; BLUEPRINT, supra note 35, at 6.
95
In late April of 2009, ABC News reported that as few as seven and as many as all seventeen of the Chinese
Muslims could be sent to live in a small Uyghur community just outside of Washington, D.C., of all places.
Guantanamo Uyghur Detainees: Coming to America?, ABC News, Apr. 24, 2009,
http://abcnews.go.com/Politics/story?id=7423474&page=1. See also Julian Borger & Ewan MacAskill, White House
Ready to Let Guantánamo Inmates Settle on US Mainland, THE GUARDIAN (UK), Mar. 22, 2009,
http://www.guardian.co.uk/world/2009/mar/22/guantanamo-bay-inmates-obama-policy (“Washington has told
European officials that once a review of the Guantánamo cases is completed, the US will almost certainly allow
some inmates to resettle on the mainland.”).
Aside from the obvious security concerns – whether valid or not – raised by such a plan, physically transferring
detainees to American soil could confer even greater protections under U.S. law than due process. As the
Congressional Research Service noted, “[d]etainees transferred to the United States might seek relief from removal
under U.S. immigration laws [particularly those on asylum].” GUANTANAMO LEGAL ISSUES, supra note 39, at 11.
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It seems the time for politically-innovative solutions has come. Partly toward this end, in
November of 2008, the United States government agreed to transfer Salim Hamdan, Osama bin
Laden’s chauffeur, who was convicted of “providing material support to terrorism” on account of
his former occupation, to the custody of the Yemeni government to serve out the remainder of
his sentence.96 There has also been talk of the establishment of a reintegration program in
Yemen, in the model of Saudi Arabia’s.97 While the circumstance of the Yemenis at
Guantanamo remains among the most complicated to be resolved,98 the fact that potential
courses of action involving the transfer of detainees to Yemen are being discussed at all seems to
represent a new approach to resolving the issue of detainee disposition.
If such an approach is in effect, and if it is to be exercised to its fullest potential, any
solution for addressing the disposition of Guantanamo detainees should involve countries at the
center of the global counter-terrorism effort. In particular, making Afghanistan fully and
effectively part of the process for the disposition of the men remaining at Guantanamo would
have a positive effect not only on the process itself, but on the continued effort to strengthen the
Consequently, the Obama Administration reportedly plans to “seek legislation from Congress addressing detainees’
immigration status, possibly including barring them from asylum eligibility.” Id. at 11 (citing Yochi J. Dreazen,
Gates Seeks Congress’ Help in Closing Guantanamo, WALL ST. J., Dec. 3, 2008, at A6).
96
See, e.g., Jess Bravin, Hamdan to Go Back to Yemen as Saga Ends, WALL ST. J., Nov. 25, 2008, at A5. Hamdan’s
sentence was complete in December. See, e.g., id.
97
Much of that talk, however, has been rather dubious about the Yemeni government’s ability to establish such a
program. See, e.g., Stephen F. Hayes & Thomas Joscelyn, Anywhere But Yemen, THE WKLY. STANDARD, Feb. 9,
2009, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/016/088ivqib.asp.
98
In March of 2009, CNN reported that some Yemenis of Saudi Arabian descent could actually be transferred to
Saudi Arabia and processed through its reintegration program. Adam Levine, U.S. May Hand Over Yemeni
Detainees at Gitmo to Saudis, CNN.com, Mar. 13, 2009,
http://edition1.cnn.com/2009/WORLD/meast/03/13/guantanamo.saudis.yemen/index.html. Two months earlier,
Yemen’s president had repeated his opposition to any solution that did not involve transferring Yemenis back to
Yemen. See, e.g., id. Though it may not be possible for Yemen to develop a viable reintegration program before a
decision about the fate of its nationals will be made, promising to continue to incarcerate them may also prove
problematic: as one expert noted, “locking up former Guantanamo detainees could threaten alliances that Yemeni
President Ali Abdullah Saleh has been forging with Islamic fundamental parties.” Michael Melia, No Way Out for
Yemeni Detainees, THE VIRGINIAN-PILOT, Jan. 12, 2008, at A5.
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rule of law in the country. Any proposal about the dimensions of such an approach, however,
should be preceded by a discussion of which detainees could actually be transferred there.
iii. Detainees Eligible for Transfer to Afghanistan
The most obvious detainees eligible for transfer to Afghanistan are the approximately
twenty-five Afghans who remain in custody at Guantanamo.99 In fact, in 2005 the U.S. and
Afghan governments executed a formal agreement to enable the return of nearly all Afghan
nationals held at Guantanamo to the custody of the latter.100 Assuming the United States does
not intend to bring charges against any of those who remain,101 they too should be transferred
within the foreseeable future.
The ultimate disposition of those transferred depends on the nature of the terms of the
specific agreement under which they are transferred. Generally speaking, under international
law the custodial transfer of a person held on suspicion of terrorist activity may be accomplished
for one of two purposes: (1) the suspect may be transferred from the apprehending country to
another country for adjudication, pursuant to the laws of the receiving country; or (2) the suspect
may be deported, most commonly to his country of origin, not to face charges, but merely to
permit the deporting country to exercise its sovereign right to set and enforce criteria for entry
99
Ken Gude puts the total at thirty. See GUDE, supra note 4, at 6 (citing ARBITRARY JUSTICE, supra note 5, at i).
CCR sets it at twenty-seven. CLOSING GUANTANAMO, supra note 10, at 5. According to the New York Times, it is no
more than twenty-six.
100
See, e.g., ARBITRARY JUSTICE, supra note 5, at 2; Josh White & Robin Wright, Afghanistan Agrees to Accept
Detainees; U.S. Negotiating Guantanamo Transfers, N.Y. TIMES, Aug. 5, 2005, at A01.
101
The New York Times’ accounting of Afghan men who remain at Guantanamo includes one individual identified
as a high-value detainee, Muhammad Rahim al Afghani. The New York Times, The Guantánamo Docket – Citizens
of Afghanistan, http://projects.nytimes.com/guantanamo/country/afghanistan (last visited Apr. 25, 2009). al
Afghani’s name does not appear on the Defense Department’s list of high-value detainees, which only includes
fourteen individuals, to the New York Times’ sixteen. See U.S. Dept. of Defense,
http://www.defenselink.mil/pdf/detaineebiographies1.pdf (last visited Apr. 19, 2009); id.
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and stay within its borders.102 Under the 2005 agreement between Washington and Kabul on the
transfer of detainees from Guantanamo, it appears that all of the men returned to Afghanistan
were at least initially to be held at the Afghan National Detention Facility, operating in a section
(known as “Block D”) of the Pul-i-Charki prison just outside the capital city.103 A group
composed of Afghan and American officials was then to decide which detainees should be held
over for prosecution in Afghan courts under domestic laws, and which should be released.104
According to a study conducted in April of 2008 by the advocacy group Human Rights
First, the individuals brought to Block D who have subsequently been tried have faced any of
several charges under Afghanistan’s 1987 Law of Crimes Against the Internal and External
Security of the Democratic Republic of Afghanistan.105 The potential charges include treason,
destruction of property using explosives, organizing or becoming involved in activities that
threaten security, and “assisting the enemy forces.”106 It would appear by their phrasing that,
except for the first, any such charge may be brought against an Afghan citizen or a foreigner.107
Because of the broad applicability of the potential charges, it seems at least possible that
even those Guantanamo detainees who are not of Afghan descent, but against whom legitimate
allegations may be raised, could be transferred to the custody of the Afghan government to face
prosecution by its courts. In this respect, an individual’s place of apprehension is undoubtedly
important – those originally taken into custody in Afghanistan could be justifiably subject to
102
See generally MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., RENDITIONS: CONSTRAINTS IMPOSED BY LAWS
ON TORTURE 1-6 (2009), available at http://www.fas.org/sgp/crs/natsec/RL32890.pdf (comparing the processes for
and legal constraints to the transfer of terror and criminal suspects via judicial and extrajudicial means).
103
See ARBITRARY JUSTICE, supra note 5, at ii.
104
See id. at 3.
105
Id. at 7. A copy of the 1987 Law, ostensibly current as of April 2008, is available in the appendix to Human
Rights First’s study. Id. at 24-28.
106
Id. at 7. Ironically, as the 1987 Law was “enacted during the rule of the Soviet Union-supported Communist
government of Afghanistan,” id, it seems the reference to “the enemy” likely originally implicated those forces
seeking to overthrow the government, which in at least a tangential way, included the United States.
107
See id. at 24-28.
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prosecution for acting or organizing actions to threaten the safety and security of its people. Of
course, a complete assessment of the issue for any particular individual would depend on the
exact circumstances of his apprehension, and the evidence collected before, during, and after the
event. Suffice it to say, it is not necessary that only Afghan detainees be transferred to
Afghanistan for adjudication.
For at least two reasons, however, transfers of individuals from Guantanamo directly to
the custody of the Afghan government likely will – and should – be limited to those of Afghan
descent, at least in the near term. First, given the nascent state of the rule of law in Afghanistan,
and the significant developments in structure and infrastructure yet to be made,108 caution should
be taken to avoid imposing too heavy a burden on the country’s new and existing institutions. A
measured, focused transfer strategy will have the most positive effect. Second, even if not given
over to the custody of its government, it is quite possible that many of the remaining detainees
will end up being transferred to Afghan soil, anyway. This is because the United States has been
operating a detention center very much like Guantanamo in Afghanistan since the start of
hostilities.109 Described as a “cavernous former machine shop” and originally intended only to
serve as a “screening center,” rather than for long-term detention, the Bagram Theater
Internment Facility, located on the primary U.S. military base in Afghanistan, eventually grew to
hold more than twice the number of men as Guantanamo.110 Though a full discussion of the
history and conditions of detention at Bagram is beyond the scope of this paper,111 the likelihood
108
See infra Part III.a.
See, e.g., Tim Golden & Eric Schmitt, A Growing Afghan Prison Rivals Bleak Guantanamo, N.Y. TIMES, Feb.
26, 2006, at A1; Eric Schmitt & Tim Golden, U.S. Set to Build Big New Prison in Afghanistan, N.Y. TIMES, May 17,
2008, at A1.
110
See, e.g., id.
111
A surprisingly detailed, if somewhat dated, description of the facility, despite the “rigorous secrecy” under which
it has operated, is available in a 2006 New York Times article by reporters Tim Golden and Eric Schmitt, supra note
109.
109
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that it will continue to play a role in the detention of terror suspects once Guantanamo is closed
merits consideration of that role here.
iv. Detainees Who May Be Transferred to Bagram
The premise that certain Guantanamo detainees may be transferred to Bagram is not so
incongruous, given the fact that many of the men currently held at Guantanamo were likely
processed at Bagram before they ended up in Cuba.112 According to a report in the New York
Times, the National Security Council decided to end those transfers in September of 2004, after
the Supreme Court’s decisions granting habeas corpus and other due process rights to
Guantanamo detainees.113 Though the Defense Department delegated Bagram detainee release
authority to its military commanders in early 2005, a move that was expected to facilitate the
processing of the individuals brought there and thus keep its population manageable,114 by May
of 2008 the facility was reportedly “packed with about 630 prisoners.”115 In that month,
Pentagon officials acknowledged that $60 million in emergency construction funds had been
allocated to build a newer, more livable detention facility at Bagram.116
As observers have already noted, given this sizeable investment to improve the physical
conditions at Bagram, U.S. detention activity there is not likely to end soon.117 In 2005, in return
for Afghanistan’s promise to accept eventual custody of the Afghans detained at Bagram, the
United States agreed to spend $10 million to refurbish Block D at Pul-i-Charki prison and train
See, e.g., Golden & Schmitt, supra note 109 (“Bagram functioned as a central clearing house for the global fight
against terror. Military and intelligence personnel there sifted through captured Afghan rebels and suspected
terrorists seized in Afghanistan, Pakistan and elsewhere, sending the most valuable and dangerous to Guantanamo
for extensive interrogation, and generally releasing the rest.”)
113
See, e.g., id. See also supra notes 20-21. The Times reporters noted that “[t]he question of whether those same
rights appl[ied] to detainees in Bagram ha[d] not been tested in court.” Golden & Schmitt, supra note 109.
114
See, e.g., Golden & Schmitt, supra note 109.
115
Schmitt & Golden, supra note 109.
116
See, e.g., id.
117
See, e.g., id.
112
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Afghan prison guards.118 But in 2008, “American officials . . . concede[d] that the new Afghanrun prison [could] not absorb all the Afghans . . . detained by the United States, much less the
waves of new prisoners from the escalating fight against Al Qaeda and the Taliban.”119 In at
least the near term, then, it appears the population at Bagram will continue to include Afghans
(perhaps significant numbers of them), and that it is the logical destination for any detainees left
at Guantanamo on January 22, 2010.120
But Bagram cannot be permitted to continue to operate as “Guantanamo’s mostly hidden
bigger brother.”121 Nor should it ultimately be “[converted] into an Afghan-only facility
operated by the Afghan government.”122 Rather, once Guantanamo has been emptied, and the
process by which that task is achieved thoroughly assessed, attentions must be turned to the
greater (at least numerically) task of determining the proper disposition of the men held at
Bagram. Since this population includes significant numbers of Afghans, the transfer of detainees
from U.S. custody at Guantanamo, and their subsequent custody and disposition by the Afghan
government, may serve as a template for future action with respect to the individuals at Bagram.
III. Detainee Disposition in Afghanistan and Its Contribution to the Rule of Law
Nothing about the current situation in Afghanistan is simple, and among the least simple
tasks of all is the development of a formal rule of law in the country. To a great degree this is
because Afghanistan has never come close to being the “highly centralized state, with all
political and economic power flowing from Kabul” that post-conflict reformers seem to believe
118
See Golden & Schmitt, supra note 109.
See Schmitt & Golden, supra note 109.
120
Thus if any detainees are held over for preventive detention when Guantanamo is closed, see supra notes 38-43
and accompanying text, they will likely be sent to Bagram. Absent new legislation to bar detainees from asylum
eligibility, see supra note 95, it is very unlikely that any detainees held for preventive detention will be sent to
facilities in the United States.
121
GUDE, supra note 4, at 5.
122
Close Guantanamo?, supra note 41.
119
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it should be.123 To be fair, the history of nation-rebuilding is rife with logical initiatives to start
with reform from the top and let it work its way down.124 The effort has been no different in
Afghanistan, and to some observers this attempt to impose the standard development blueprint
without considering the country’s tradition, even its culture, of “community-based governance”
has seriously hindered the progress of that effort.125 To understand the steps that may be taken to
improve the situation, and particularly those involving the disposition of the Afghans now held at
Guantanamo, it is important to start with a basic conception of the current status of the rule of
law in Afghanistan.
a. The Rule of Law in Afghanistan Today
According to the United States Institute of Peace (USIP), a nonpartisan policy research
center, “Afghanistan’s history suggests that stability has required a power-sharing arrangement
between the central government and local entities.”126 From the rule of law perspective,
beginning in the last two decades of the nineteenth century, when British India controlled
Afghanistan’s external affairs and bankrolled the new government to ensure stability within the
country, “[t]he emir established a centralized administration [only] to assure security and sharia
courts for justice, while leaving local governance and dispute settlement to tribes and
communities.”127 But at some point or points during the subsequent century, and most obviously
amidst the geostrategic maneuverings of the United States and the Soviet Union during the Cold
123
J. Alexander Thier, Introduction: Building Bridges, in THE FUTURE OF AFGHANISTAN 1, 5 (J. Alexander Thier
ed., 2009), available at http://www.usip.org/peaceops/afghanistan/foa.pdf. It should be acknowledged that this is not
just any reform group’s vision for the future of Afghanistan, but the Afghan constitution’s. See id.
124
See generally JANE STROMSETH, DAVID WIPPMAN, & ROSA BROOKS, CAN MIGHT MAKE RIGHTS?: BUILDING THE
RULE OF LAW AFTER MILITARY INTERVENTIONS 85-133 (2006).
125
See, e.g., Thier, supra note 123, at 5-7; C. CHRISTINE FAIR & SETH G. JONES, U.S. INST. OF PEACE, SECURING
AFGHANISTAN: GETTING ON TRACK 24-26 (2009), http://library.usip.org/articles/1012068.1022/1.PDF.
126
FAIR & JONES, supra note 125, at 23.
127
Barnett R. Rubin, The Transformation of the Afghan State, in THE FUTURE OF AFGHANISTAN 13, 14 (J. Alexander
Thier ed., 2009), available at http://www.usip.org/peaceops/afghanistan/foa.pdf.
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War, that minimal coordinating structure and function got lost.128 Nevertheless, decentralized
governance at the local level continued: as the USIP’s J. Alexander Thier points out, “the
resilience of community-based structures . . . allowed Afghans to survive even while national
government failed them.”129
Of course, the failure of national governance and security within Afghanistan, combined
with certain economic and geographic elements, permitted the country to become a hotbed for al
Qaeda, arguably this century’s greatest threat to international security.130 Thus seven years after
the international community was moved to take notice and to take action to address that threat, it
seems most efforts to rehabilitate and reform the country have been introduced at the national
level.131 Particularly with regard to the rule of law, few initiatives have interfaced with, let alone
integrated, the lower-level and less-formal structures and practices that have existed for as long
as Afghanistan has.132 The situation has only been exacerbated by the lack of coordination
among the national-level programs that have been instituted.133
In 2004, the USIP found that the numerous piecemeal programs underway to establish the
rule of law in Afghanistan had resulted in very little progress toward that end.134 This outcome
was in large part due to the decision of the United Nations and the United States, the two
128
See id.
Thier, supra note 123, at 5.
130
See generally Rubin, supra note 127, at 14-15.
131
See generally id. at 18-21 (discussing the security and stability challenges preventing the decentralization of
governance and reform efforts).
132
See generally Leigh Toomey & J. Alexander Thier, U.S. Inst. of Peace, Bridging Modernity and Tradition: Rule
of Law and Search for Justice in Afghanistan, Oct. 2007,
http://www.usip.org/pubs/usipeace_briefings/2007/1031_afghanistan.html (discussing means to “build a more
collaborative relationship between the formal and informal justice sectors in Afghanistan”).
133
See, e.g., U.S. INST. OF PEACE, ESTABLISHING THE RULE OF LAW IN AFGHANISTAN (2004),
http://www.usip.org/pubs/specialreports/sr117.pdf (assessing the multifaceted and, in many areas uncoordinated,
effort to institute the rule of law in Afghanistan, and providing recommendations for future action) [hereinafter
ESTABLISHING THE RULE OF LAW]; FAIR & JONES, supra note 125, at 8-9.
134
See generally ESTABLISHING THE RULE OF LAW, supra note 133. The USIP’s specific findings will not be
discussed in detail in the pages that follow. The report provides a concise yet thorough treatment of the various rule
of law efforts in progress in Afghanistan in 2004, and should be considered required reading for anyone interested in
the subject.
129
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ostensible coordinators of the overall effort, “to limit the international presence and to place
primary responsibility upon the Afghans for providing their own security and directing their own
reconstruction – responsibilities they . . . had little capacity to execute.”135 Thus while individual
countries had been assigned “lead nation” status to direct reforms in particular areas, there was
little to no synchronization or oversight of those efforts.136 Aside from uneven and in some cases
incompatible results across the intended “system” of justice,137 a very real consequence of this
approach was that, despite promises of significant contributions of capital and expertise, just two
years into the reconstruction effort lead nation participants and other donors were already
shirking their responsibilities.138
Five years later, the situation remains incredibly, and depressingly, the same. A 2009
USIP assessment of the status of post-conflict security and justice reform efforts in Afghanistan
is permeated with references to “absence of . . . coordination,” “poor coordination,” “sub-optimal
coordination,” and “a vacuum in coordination” among the international actors funding and
directing those efforts.139 The financial deficiencies remain as well: “most countries have failed
to honor their commitments by actually disbursing promised funds.”140 This stove-piped lead
nation approach to justice sector reform has led the World Bank to conclude that the
Id. at 2. This was known as the “light footprint” approach – “a way to ensure space for Afghans to take the
leading role in rebuilding their country, in contrast to the outsider-dominated approaches of the Kosovo and East
Timor missions.” Id. at 4. The USIP was skeptical of this public rationale, however, and posited instead that “a light
UN footprint would force donor nations to accept their responsibility for assisting Afghanistan, rather than putting
responsibility on the UN and then underfunding the mission and blaming it for the resulting failure – as occurred in
other circumstances.” Id. at 5.
136
See id. at 4-5. One other consequence of the lack of overall coordination was the potential for hijacking the
missions of other lead nations. For example, after lead nation Germany failed to implement any specific program for
training rank-and-file police officers by 2002, the United States assumed that part of the police-training task. See
FAIR & JONES, supra note 125, at 10-11.
137
See generally id. at 15-18 (recommending immediate practical steps to bring about more holistic reform).
138
See id. at 5. The USIP termed this the “light wallet” approach. Id.
139
FAIR & JONES, supra note 125, at 7, 9, 13, 17.
140
Id. at 9. Furthermore, because there has been scanty reporting of donor funding (and much of it has been
channeled around, as opposed to through, the Afghan government), there is no official record as to how much has
been spent on reform efforts or how it has been spent. Id. at 8-9, 30.
135
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effectiveness Afghanistan’s justice system – specifically its courts and correctional facilities –
has actually worsened over the past half-decade.141 With such a disjointed operation from the
top down, it should perhaps come as no surprise that bottom-up efforts have been nothing more
than an afterthought to most.142
The USIP, for one, has been working since at least 2007 to raise awareness of the need to
unite the “formal and informal justice sectors” in Afghanistan.143 According to a conference
report by the organization, “[i]nformal, community-based dispute resolution mechanisms –
which are more readily accessible and understood than formal courts by most Afghans,
particularly outside urban areas – are widely used to resolve both civil and criminal matters.
These mechanisms are critical to maintaining stability within communities.”144 Thus, linking
community-based justice processes with formal rule of law institutions and processes is
necessary to ensuring the legitimacy of the latter in the eyes of the Afghan people.145 One
challenge is getting this message to those involved in the development processes.
Again, the story here is not all doom and gloom. Though reforming the Afghan security
and justice sectors will continue to pose certain challenges, the judicial disposition of the
Afghans currently held at Guantanamo against whom legitimate charges may be raised could
have a dramatic impact on the continued development of the rule of law in Afghanistan.
Bridging the country’s formal and informal justice mechanisms by establishing a reintegration
program for detainees who are not tried and sentenced could also improve perceptions of and
trust in the court system. Before discussing how these improvements could be effected,
141
Id. at 16-18.
See generally id. at 24 (“there is no unified approach across Afghanistan to deal with tribes, sub-tribes, clans, and
other local institutions”).
143
See Toomey & Thier, supra note 132.
144
Id.
145
See, e.g., id.
142
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however, it is important to acknowledge recent observations of Afghan trials of Guantanamo and
Bagram detainees by the organization Human Rights First (HRF).
b. Afghan Detainee Trials, Observations, and Recommendations
In April of 2008, HRF released a report on the prosecution of Guantanamo and Bagram
detainees, detailing its findings from extensive research, including interviews, the review of
court documents, and the observation of two detainee trials.146 HRF reported that as of April 1,
2008, 160 out of 250 detainees transferred to Block D at Pul-i-Charki prison had been referred
for criminal prosecution.147 Sixty-five men had been convicted, twenty-five of them released for
time served.148 Seventeen had been acquitted.149 Based on its investigation, HRF observed that
the “verdicts of [those] trials appear[ed] entirely arbitrary.”150 Specifically, insufficient evidence
and “procedural flaws . . . significantly undermine[d] the fairness” of the proceedings.151
To a large extent, the deficiencies HRF observed began the moment a detainee was
transferred and held over for prosecution.152 When the United States transferred custody of any
detainee to the Afghan government, it also provided a file of unclassified information that
became “the basic ‘evidence’ . . . form[ing] the foundation for [charges under Afghan law].”153
According to HRF, the files were often sparse on details, and in particular seldom if ever
contained sworn statements from individuals involved in the detainee’s apprehension or
interrogation.154 The information in the files was subsequently investigated and supplemented
by the Afghan National Directorate of Security (NDS), but according to HRF’s research, “the
146
ARBITRARY JUSTICE, supra note 5, at i-ii.
Id. at 7.
148
Id.
149
Id.
150
Id.
151
Id. at 11-14.
152
See Id. at 8.
153
Id.
154
See id.
147
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NDS investigation [process was] very superficial and based on second or even third-hand
information.”155 Finally, the detainee was interviewed by NDS officials and a “national security
investigative prosecutor,” after which his indictment was prepared.156
HRF also reported significant evidentiary and procedural issues in the trial proceedings
that it observed.157 Each trial lasted for approximately half an hour, during which the prosecutor
and defense attorney each read from prepared statements, and a three-panel judge asked
questions of the defendant, who also gave a statement.158 “No witness other than the defendant
appeared or testified.”159 Though defense counsel raised evidentiary and procedural objections
during each trial that HRF observed, “[t]he judges did not respond to [these] objections.”160
During the course of its research, HRF met with an official at the U.S. embassy in Afghanistan
who asserted that most evidentiary challenges on appeal would not support overturning a verdict
in proceedings like the one it observed.161
Noting that Afghanistan is a signatory to United Nations International Covenant of Civil
and Political Rights (ICCPR), HRF found violations to several fair trial guarantees under both
the ICCPR and the Afghan code of criminal procedure.162 These include: “the right to adequate
time and facilities to prepare a defense; the right not to incriminate oneself; the right to be
informed of charges in a language one can understand; and the right to examine witnesses
155
Id. at 9.
Id. It bears noting that Afghanistan has adopted the civil-law approach to criminal procedure, whereby the
prosecutor compiles all exculpatory and inculpatory evidence into a written submission to the trial court. Id. at 8. As
HRF notes, “the trial judges’ inclination in a civil law system [is] to rely heavily on the prosecutor – which
obviously works best when the prosecutor is fulfilling his responsibility to be objective and not adversarial in the
case, and is diligent in constructing a case based on real evidence.” Id. at 9.
157
See id. at 10.
158
See id.
159
Id.
160
Id.
161
Id. at 9. Also in April of 2008, the Washington Post reported similar findings from its own investigation of
Afghan detainee trials. See Candace Rondeaux, Josh White & Julie Tate, Afghan Detainees Sent Home to Face
Closed-Door Trials, WASH. POST, Apr. 12, 2008, at A1.
162
See id. at 8, 11-14.
156
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against the accused.”163 To address these issues, HRF recommended a number of steps by the
U.S. Defense Department and various Afghan government agencies.164 Among other things, the
United States was urged to provide a more complete file on each detainee, including all
unclassified information collected in the process of a detainee’s apprehension and subsequent
detention, and not including information obtained through coercion or torture.165 The Afghan
Attorney General’s Office and the NDS, conversely, were advised to request these details at the
time of detainee transfer.166 The Afghan Supreme Court and the Ministry of Justice were
encouraged to ensure that judges adhered to the ICCPR and the Afghan code of criminal
procedure when presiding over detainee prosecutions, and to open future trials to family
members of the accused, the media, and other observers.167
c. Future Detainee Judicial Proceedings and Strengthening the Rule of Law
Importantly, Human Rights First did not recommend that the detention and trial of
Afghan detainees from Guantanamo and Bagram be terminated altogether. Equally significantly,
the tenor and thrust of HRF’s recommendations implies that Afghanistan should continue to
adjudicate the cases of Guantanamo and Bagram detainees through its “regular criminal justice
system,”168 as opposed to any parallel military or national security court system. That is
precisely how the disposition of Guantanamo detainees who legitimately may be subject to
detention and criminal prosecution in Afghanistan should occur. Afghanistan’s emerging formal
justice system must remain at the center of any process to adjudicate individuals apprehended
and detained by U.S. and coalition forces for violating the country’s criminal code.
163
Id. at 11.
See id. at 15-16.
165
See i.d. at 15.
166
See id. at 16.
167
See id.
168
Id. at iii.
164
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Despite the apparent failure of the United Nations’ “light footprint” approach to postconflict reconstruction, any urge to overcorrect should be overcome. It would be wholly
improper and counterproductive to shift responsibility for the implementation and administration
of the rule of law to facilities and entities not operated by the Afghan government. That is not to
say that the instrumentalities of formal justice do not still require considerable foreign assistance
and support to come into proper working order. It is evident from the observations of HRF, the
USIP, and others that they do. But as J. Alexander Thier and others argue in a recent volume of
essays on the future of Afghanistan, there is no need to make the task more complicated than it
is: “we need to get back to the basics,” writes Thier.169 That means stepping back and
reassessing what Afghanistan needs to become recognized as a fully-fledged, fully-functioning
country, and not just the place from which terrorism so brutally emanated in 2001. Failure to
appreciate that there is a greater mission yet to be accomplished runs the risk of permitting those
roots to produce anew.
Getting back to the basics in terms of the rule of law means committing to both the
coordination and the resourcing required to give it at least a foothold in Afghanistan. The USIP
recently recommended that military forces from the United States and the North Atlantic Treaty
Organization (NATO) shift from a posture of direct action to partnering as a means of “building
the capacity of local [military] forces.”170 Instructing the lead nations currently involved in rule
of law initiatives to adopt a similar posture toward civilian justice institutions may also be
warranted. Such an approach could transition foreign partners out of standard training roles and
into actual practice, and should therefore be considered carefully. But to the extent that closer
169
170
Thier, supra note 123, at 7.
FAIR & JONES, supra note 125, at 26.
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interaction between Afghan officials and foreign ‘mentors’ may result in more meaningful
instruction and more active reform, it should at least be considered as an option.
Closer interaction among the lead nations involved in the development of the rule of law
in Afghanistan is not an option, but rather a requirement. Also needed is a single ‘leader lead’
from among those nations, to coordinate the overall effort. The United States, as one of the
largest underwriters of justice sector reforms in Afghanistan,171 should assume this role, but it
should do so with care. While the United States should not completely direct the substance of
the efforts of others, it must ensure that they are carrying out the roles they have assumed. In
2004 the USIP suggested that donors besides the lead nation in any functional justice reform area
should act proactively to become involved in reform efforts.172 But from the USIP’s assessment
five years later, it is clear that proactivity without direction either never results,173 or results in
piecemeal measures that may meet immediate needs, but never contribute to overall capacitybuilding.174 After more than half a decade of disjointed and unguided work to insufficient
results, it is time for the United States to put a foot down hard, and lead the effort to bring formal
justice and its institutions to Afghanistan.
It is justifiable from a practical perspective to have the United States serve in a
coordination capacity for rule of law reform efforts in Afghanistan, when one considers that the
initial “test cases” for the system will be individuals detained during combat operations (i.e.,
Guantanamo, and Bagram, detainees). Few nations have as much experience prosecuting al
171
See, e.g., ARBITRARY JUSTICE, supra note 5, at iii.
ESTABLISHING THE RULE OF LAW, supra note 133, at 16.
173
See, e.g., id. at 8-9 (describing the numerous pledges – potentially up to 70% of the total funding promised by
international donors – never dispersed).
174
See, e.g., id. at 30 (discussing the “‘Samaritan’s Dilemma’ in which the donor is motivated to give but the
recipient has little incentive to expend effort (e.g. reforming ministries) since aid is assured”).
172
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Qaeda terror suspects as the United States.175 As Ken Gude notes, some of the most difficult and
contentious cases in recent years also “illustrate a judicial system working through the difficult
aspects of terrorism trials,” and ultimately succeeding at meting out justice.176 If nothing else,
these examples, and those of other nations who have tried former Guantanamo detainees, can
serve to inform Afghan officials about to the kinds of issues, procedural and substantive, that
arise in terrorism proceedings. Ostensibly HRF’s recommendation that the Defense Department
“[e]stablish a legal support operation in Kabul to support the legitimate prosecution in Afghan
courts of detainees transferred by the United States” was aimed partly toward this end.177
The United States’ experience with detention could be instructive as well (though there
may be as many lessons not to learn from the American experience as there are to learn).
Although Afghan officials have indicated thus far that they have no intention of engaging in
preventive detention,178 with so many individuals still held on Afghan soil, particularly at
Bagram, the question of the permissibility of preventive detention practices eventually will have
to be resolved, even if the United States retains exclusive operational control over the facility.179
The Afghan government must have a role in the debate that leads to that resolution,180 which
itself must be informed by what has transpired at Guantanamo.
175
See sources cited supra note 46.
GUDE, supra note 4, at 24.
177
ARBITRARY JUSTICE, supra note 5, at 15. HRF’s primary practical goal in making this recommendation likely
was to facilitate the actual transfer of evidence from U.S. to Afghan officials, but inextricably linked to such
arrangements are the broader evidentiary principles that necessitate them.
178
See, e.g., Rondeaux et al., supra note 161 (“it was the Afghan government’s decision to try detainees in its courts
for crimes allegedly committed on its soil, rather than holding them indefinitely as ‘enemy combatants,’ as the
United States initially suggested”).
179
And even if, as Ken Gude recommends, administration of Bagram is turned over to NATO. See GUDE, supra
note 4, at 30.
180
The motive for this suggestion is not that different from the underlying purpose to USIP’s recommendation to
shift to partnering in actual battlefield operations: “a lead indigenous role can provide a focus for national
aspirations and show the population that they – and not foreign forces – control their destiny.” See FAIR & JONES,
supra note 125, at 26.
176
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It would be a mistake, however, to limit the rule of law-building approach (and the
support thereof) to instruments of formal justice. Preserving a space for informal justice
mechanisms to function in Afghanistan is essential.181 Linking these informal mechanisms with
formal ones will strengthen both. A reintegration program for detainees released without formal
charges, and possibly even for those who have served their sentences, could serve as such a link.
d. Implementing a Detainee Reintegration Program
In 2007, the Center for Policy and Human Development, a joint project of the United
Nations Development Program and Kabul University, recommended that the rule of law be
defined in the Afghan context as “all those state and non-state institutions that promote justice
and human development through the application of public rules that are deemed fair, applied
independently, enforced equally, and consistent with human rights principles.”182 The definition
recognizes that formal and informal legal mechanisms have existed together in Afghan society
and culture since at least modern times, and must continue to do so. While this outcome should
be the ultimate goal of rule of law efforts in Afghanistan, “developing a collaborative
relationship between the formal and informal systems must begin with practical experience, and
proceed slowly from there.”183
One way to start is by fashioning a detainee reintegration program along the lines of
Saudi Arabia’s. While the Saudi program need not be considered a strict template,184 its basic
principles and methodologies could serve as a springboard for action in Afghanistan.185 Lessons
181
See, e.g., Toomey & Thier, supra note 132.
Id.
183
Id.
184
In fact, it has been asserted that the Saudi program “uniquely fits in Saudi culture,” and thus that the approach to
these kinds of programs is not one-size-fits-all. White & Wright, supra note 85.
185
Closer examination of the Saudi program may also yield clearer data on its impact, particularly its recidivism
rate. See supra note 90 and accompanying text.
182
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may also be gleaned from reintegration efforts undertaken by the United States in Iraq,186 and by
the government of Indonesia in its northern province of Aceh.187 Efforts to develop an Afghan
reintegration program should also be informed by the findings on the psychological needs of
former detainees issued in 2008 by CCR and the University of California at Berkeley.188
While a few media and other reports have indicated that a reintegration program already
exists in Afghanistan,189 if such efforts are underway they are occurring only on a very small
scale.190 There is certainly room for expansion. As the USIP has noted, “The most effective
bottom-up strategy in Afghanistan is likely to be one that taps into already-existing local
institutions in two ways: by helping legitimate local actors provide services to their populations,
and by better connecting them to the central government.”191 Funding, supporting, and linking
formal and informal justice mechanisms to devise a comprehensive strategy for the disposition of
Afghan detainees is one such strategy. It is the only way to ensure that justice in post-conflict
Afghanistan is “more widely accessible, efficient, cost-effective and humane.”192
186
See, e.g., Schmitt & Golden, supra note 109 (In Iraq . . . American officials are giving Iraqi detainees job training
and engaging them in religious discussions to help prepare them to re-enter Iraq society. . . . About 8,000 detainees
have been released in Iraq since . . . September [2007]. Fewer than 1 percent of them have been returned to the
prison[, according to U.S. military officials].”)
187
See, e.g., IOM Indonesia, Post-Conflict Reintegration Programme in Aceh: Building a Lasting Peace, Aug. 2006,
http://www.reliefweb.int/rw/rwb.nsf/db900SID/HMYT-6SSQWQ.
188
See LAUREL E. FLETCHER & ERIC STOVER, HUMAN RIGHTS CTR., UNIV. OF CALIFORNIA AT BERKELEY,
GUANTÁNAMO AND ITS AFTERMATH: U.S. DETENTION AND INTERROGATION PRACTICES AND THEIR IMPACT ON
FORMER DETAINEES 67-68 (2009), available at http://ccrjustice.org/files/Report_GTMO_And_Its_Aftermath.pdf.
See also Human Rights Watch, Q&A: Resettlement of Guantanamo Bay Detainees, Feb. 23, 2009,
http://www.hrw.org/en/news/2009/02/23/q-resettlement-guantanamo-bay-detainees (“Some of the detainees will
require psychological counseling for post-traumatic stress disorder and other psychological harm they may have
suffered.”).
189
See, e.g., Golden & Schmitt, supra note 109 (“Since January 2005, military commanders in Afghanistan have
released about 350 detainees from Bagram in conjunction with an Afghan national reconciliation program, officials
said.”); ARBITRARY JUSTICE, supra note 5, at 3.
190
A recent report by the Chr. Michelson Institute asserts that such a program did exist, and failed due to the
inability to deliver large numbers of “reformed” Taliban commanders. See ASTRI SUHRKE ET AL., CHR. MICHELSON
INST., CONCILIATORY APPROACHES TO THE INSURGENCY IN AFGHANISTAN: AN OVERVIEW 8-9 (2009), available at
http://www.cmi.no/pdf/?file=/afghanistan/doc/Consiliatory+approcahes+Afghanistan.pdf.
191
FAIR & JONES, supra note 125, at 24.
192
Toomey & Thier, supra note 132.
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IV. The Broader Implications for Post-Conflict and Counter-Terror Efforts
This analysis would not be complete without at least a brief consideration of two
tangential implications of the disposition of Guantanamo detainees through the Afghan justice
system. One aim of the foregoing discussion was to demonstrate the absolute criticality of the
participation of the United States and other countries in the effort to bring the rule of law to
Afghanistan. That dependence on international partners more broadly implicates future efforts to
address terror globally. Successfully meeting Afghanistan’s need for post-conflict reconstruction
assistance will restore U.S.-led counter-terrorism as an international objective, and the status of
the United States in working toward that end.
a. Expanding International Involvement
There is a natural instinct to treat terrorism as a force of evil unlike any other. Typecast
as a lurking and limitlessly brutal movement, the thought of terrorism inspires the impression of
irreparable damage in its wake. Airplanes disintegrated. Buildings imploded. Lives shattered.
But in reality, terrorism as a nation-destroying force is not very different from more traditional
types of political strife and conflict. Though the geopolitical implications of getting things
wrong when reconstructing a country once controlled by terrorist elements are more troublesome
(for fear that it may rise again), the economic and social and governance issues that a place like
Afghanistan faces are no different from those that were or are present in Kosovo and East Timor
and Liberia. People need food, shelter, clothing, clean water. Disease must be warded off. Law
and order must be restored. Life must go on, and hopefully, over time, improve.
That said, reasonable or not, countering terrorism is still a high-profile mission, because
the stakes seem higher. This aspect of the post-conflict reconstruction effort in Afghanistan
could and should be used to motivate more meaningful participation by the international
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community in the years and decades to come. Aside from securing initial donor commitments,
one of the greatest difficulties of any post-conflict effort is ensuring donor follow-through on
those commitments. When the potential result of a failure to commit to rebuilding a broken
country is the rise of terror within it, failure simply is not an option. For at least three decades
Afghanistan had no real system of law and order, and it was under those conditions that al Qaeda
elements thrived. That situation cannot be allowed to continue.
But the novelty of the current situation is more than just a marketing scheme for donor
contributions. From a policy-making perspective, this mission is different. For one thing, it does
not seem the international community has ever engaged in a dialogue on the mass detention of
individuals suspected of terrorist activity, and the circumstances in which such action is
appropriate (if ever).193 Closing Guantanamo (and, eventually, addressing Bagram) also
provides an opportunity for international discussion of these and other policy issues related to the
global counter-terror effort, including whether treating terrorists as criminals serves to undermine
the “legitimacy” of their own mission.194
b. Restoring the United States’ Credibility
In a 2008 editorial, the New York Times columnist Nicholas Kristof, who’s reported on
Guantanamo nearly since it was opened, relayed a number of accounts of detainee treatment
exhibiting how our operation of the facility “[damaged] U.S. credibility like no enemy.”195
Indeed, if anything at all is clear about Guantanamo, it is that “[t]he misguided embrace of
indefinite detention, torture and abuse has greatly undermined the reputation of the United
States, fueled terrorist recruitment and undermined international cooperation in counterterrorism
193
For an in-depth treatment of the issue, see Monica Hakimi, International Standards for Detaining Terrorism
Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 Yale J. Int’l L. 369 (2008).
194
See supra note 64 and accompanying text.
195
Nicholas D. Kristof, Editorial, America’s Prison of Shame: Guantanamo Has Undermined U.S. Credibility Like
No Enemy, PITTSBURGH POST-GAZETTE, May 6, 2008, at B5.
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operations.”196 President Obama’s Order closing Guantanamo calls for the disposition of
detainees in a manner that will “further the national security and foreign policy interests of the
United States and the interests of justice.”197
The relationship between the pursuit of justice and our own national security and foreign
policy interests should not be lost on the individuals developing the plans for shuttering the
detention facility. A true sense of accountability must inform their decisions and their actions.
So must the realization that this event is just one element in the much larger effort, not only to
establish the rule of law in Afghanistan, but to restore a sense of lawfulness globally. Closing
Guantanamo the right way cannot make up for the failings of justice that have been exhibited
there, but it will be a start.
V. Conclusion
Properly closing the detention facility at Guantanamo Bay is an enormous challenge for
the United States. Ensuring that the closure is the first step toward a renewed effort to establish
the rule of law in Afghanistan is our obligation. But while the process is ours to initiate, we
cannot complete the task alone. Turning the page on Guantanamo and all that it represents must
be an international endeavor, a collective pursuit of justice.
BLUEPRINT, supra note 35, at 8. It has also inspired a significant amount of internal dissent – the likes of which
may not have been seen since the Vietnam War: “Military police officers, court officials, defense attorneys and
prosecutors have resigned and aired their doubts and criticisms in public. No other court has seen this many people
resign from it.” Gebauer et al., supra note 3.
197
EO 13492, supra note 1.
196
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