The United States has formally handed over control of Bagram prison to Afghan authorities. Yet despite this, U.S. officials say they still have the authority to "capture and detain" -- much to the dismay of the Afghan government, which has insisted that Afghans "on Afghan soil" can no longer be detained by the U.S. military. With disagreement over U.S. detention authority in Afghanistan continuing, RFE/RL's Frud Bezhan spoke to Chris Rogers, a human rights lawyer at the Open Society Foundation who works on civilian casualties and conflict-related detentions in Afghanistan and Pakistan.
RFE/RL: The U.S. officially handed over control of Bagram prison to Afghan officials on Monday (September 10), ending the six-month transfer that began after an agreement was signed between the two countries in March. While some 3,000 detainees have been transferred to Afghan control, around 50 foreign prisoners and several hundred Afghans who were detained after the March agreement are still in American hands. Why is the issue still unresolved?
Chris Rogers: From our conversations with Afghan and American officials, it’s become very apparent that the two sides have very different views of what the Bagram handover means and what it will mean for the future of U.S. detention authority in Afghanistan. These questions remain unresolved and [touch on] some of the most fundamental issues that will be outstanding for several years; namely, what U.S. detention and military power will be in the sovereign nation of Afghanistan going forward.
RFE/RL: Afghan officials have said that no detentions will be carried out by the U.S. military in Bagram. Are there any loopholes in the handover agreement that give the U.S. some form of continued authority over the facility?
Rogers: I think one of the more important [loopholes] is the veto power the United States has over releases. The U.S. has to effectively approve individuals who are recommended or proposed for release by the Afghans. And so, in many ways, the Afghans do exercise an incredible amount of control over the process, prosecution, and review of these detainees' cases, but the United States has maintained some elements of power within the system from their perspective, to ensure that individuals who they deem security risks aren’t being released.
RFE/RL: You have said the partial handover of Bagram from U.S. to Afghan authority has created an internment regime which will allow the Afghan government to detain individuals without trial. Are there fears that this system will be subject to abuse?
Rogers: One of the biggest fears that we have is how this detention authority will be used in the future. There is nothing in the terms of the documents that created this regime that limit it either to a certain period of time or to U.S. detainees themselves. In conversations we have had with Afghan officials, they anticipate using this authority not just for the purpose of [the] handover of Bagram, but also in the country as a whole. This raises very serious questions about whether this is constitutional and whether it's a violation of Afghan domestic law.
RFE/RL: Do you think the creation of such a system of detention without trial could lead to greater risk of torture and abuse among Afghan inmates?
Rogers: Torture is a problem in Afghanistan, firstly, given that we do know that there is a risk of torture particularly amongst Afghan national security detainees. And secondly, knowing more broadly that when detainees lack basic due-process rights, particularly access to legal counsel and review of their detention by a court, this dramatically increases their risk of torture.
RFE/RL: One of the other unresolved issues over the handover is the situation of foreign detainees being held at Bagram. Is there a risk that these detainees could fall into indefinite detention, much like the detainees in Guantanamo Bay?
Rogers: The agreement does not cover what will happen to third-country nationals. The Afghan government has made it very clear that, while in the short term it seems as if they’re willing to tolerate the continued detention of third-country nationals by the U.S., in the medium term the U.S. cannot continue to operate a prison on Afghan soil. What we’re concerned with is, the longer time goes on and the continued failure of the U.S. to address these cases, it pushes detainees further into a situation of legal limbo and they end up in a situation very similar to those detainees at Guantanamo Bay.
RFE/RL: Why has the Afghan government pushed so hard to gain control over the Bagram detention facility? Does the handover mark a key victory for the unpopular government of President Hamid Karzai?
Rogers: In many ways, it symbolizes for the Afghan government and for the Afghan people an assertion of sovereignty. There were some very serious, credible allegations of torture and mistreatment in the earlier years in Bagram, and those are still imprinted in the minds of many Afghans. The Bagram system is not very transparent and [was indicative of] an incredible amount of secrecy and lack of due process being conducted by a foreign force on Afghan territory. And to many Afghans, this was an affront to national sovereignty and represented some of the grievances that they had with respect to international forces and the U.S. in particular.
RFE/RL: You have said that the differences between Kabul and Washington over the handover of Bagram shed light on broader, unresolved tensions between the two sides concerning Afghan sovereignty and U.S. strategic interests. In what other instances have we seen these tensions surface?
Rogers: The special operations and night raids. Those two issues are closely linked in many ways, but it has essentially to do with to what degree -- especially as we near 2014 -- the Afghans will be taking the lead and having control over military operations. To what degree the United States can continue to engage in military operations on its own. But I still think there are some serious questions to what degree the Afghan government has the final say on what kind of operations are conducted and how.
RFE/RL: The U.S. officially handed over control of Bagram prison to Afghan officials on Monday (September 10), ending the six-month transfer that began after an agreement was signed between the two countries in March. While some 3,000 detainees have been transferred to Afghan control, around 50 foreign prisoners and several hundred Afghans who were detained after the March agreement are still in American hands. Why is the issue still unresolved?
Chris Rogers: From our conversations with Afghan and American officials, it’s become very apparent that the two sides have very different views of what the Bagram handover means and what it will mean for the future of U.S. detention authority in Afghanistan. These questions remain unresolved and [touch on] some of the most fundamental issues that will be outstanding for several years; namely, what U.S. detention and military power will be in the sovereign nation of Afghanistan going forward.
RFE/RL: Afghan officials have said that no detentions will be carried out by the U.S. military in Bagram. Are there any loopholes in the handover agreement that give the U.S. some form of continued authority over the facility?
Rogers: I think one of the more important [loopholes] is the veto power the United States has over releases. The U.S. has to effectively approve individuals who are recommended or proposed for release by the Afghans. And so, in many ways, the Afghans do exercise an incredible amount of control over the process, prosecution, and review of these detainees' cases, but the United States has maintained some elements of power within the system from their perspective, to ensure that individuals who they deem security risks aren’t being released.
RFE/RL: You have said the partial handover of Bagram from U.S. to Afghan authority has created an internment regime which will allow the Afghan government to detain individuals without trial. Are there fears that this system will be subject to abuse?
Human rights lawyer Chris Rogers
Rogers: One of the biggest fears that we have is how this detention authority will be used in the future. There is nothing in the terms of the documents that created this regime that limit it either to a certain period of time or to U.S. detainees themselves. In conversations we have had with Afghan officials, they anticipate using this authority not just for the purpose of [the] handover of Bagram, but also in the country as a whole. This raises very serious questions about whether this is constitutional and whether it's a violation of Afghan domestic law.
RFE/RL: Do you think the creation of such a system of detention without trial could lead to greater risk of torture and abuse among Afghan inmates?
Rogers: Torture is a problem in Afghanistan, firstly, given that we do know that there is a risk of torture particularly amongst Afghan national security detainees. And secondly, knowing more broadly that when detainees lack basic due-process rights, particularly access to legal counsel and review of their detention by a court, this dramatically increases their risk of torture.
RFE/RL: One of the other unresolved issues over the handover is the situation of foreign detainees being held at Bagram. Is there a risk that these detainees could fall into indefinite detention, much like the detainees in Guantanamo Bay?
Rogers: The agreement does not cover what will happen to third-country nationals. The Afghan government has made it very clear that, while in the short term it seems as if they’re willing to tolerate the continued detention of third-country nationals by the U.S., in the medium term the U.S. cannot continue to operate a prison on Afghan soil. What we’re concerned with is, the longer time goes on and the continued failure of the U.S. to address these cases, it pushes detainees further into a situation of legal limbo and they end up in a situation very similar to those detainees at Guantanamo Bay.
RFE/RL: Why has the Afghan government pushed so hard to gain control over the Bagram detention facility? Does the handover mark a key victory for the unpopular government of President Hamid Karzai?
Rogers: In many ways, it symbolizes for the Afghan government and for the Afghan people an assertion of sovereignty. There were some very serious, credible allegations of torture and mistreatment in the earlier years in Bagram, and those are still imprinted in the minds of many Afghans. The Bagram system is not very transparent and [was indicative of] an incredible amount of secrecy and lack of due process being conducted by a foreign force on Afghan territory. And to many Afghans, this was an affront to national sovereignty and represented some of the grievances that they had with respect to international forces and the U.S. in particular.
RFE/RL: You have said that the differences between Kabul and Washington over the handover of Bagram shed light on broader, unresolved tensions between the two sides concerning Afghan sovereignty and U.S. strategic interests. In what other instances have we seen these tensions surface?
Rogers: The special operations and night raids. Those two issues are closely linked in many ways, but it has essentially to do with to what degree -- especially as we near 2014 -- the Afghans will be taking the lead and having control over military operations. To what degree the United States can continue to engage in military operations on its own. But I still think there are some serious questions to what degree the Afghan government has the final say on what kind of operations are conducted and how.