Fixing Detention in Afghanistan

The Obama administration is currently revising detainee procedures in Afghanistan. Bagram Airfield, located north of Kabul, is home for roughly 600 detainees. The Department of Defense plans to institute new review boards patterned on the ones at Guantanamo Bay, allowing detainees to challenge the basis of their detention and present evidence supporting their release.

The Bagram Theater Internment Facility has long used Unlawful Enemy Combatant Review Boards to determine who should remain in custody. These boards provided minimal process and, consequently, minimal ability to determine if the detainees were militants or intelligence operatives fighting the government. The detainee was not allowed to attend the hearing.

The shift in policy is an improvement, but a better model has been proposed by the Heritage Foundation’s Cully Stimson, Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War. Stimson proposes that detention hearings follow the model used to determine the status of Salim Hamdan, Usama bin Laden’s driver. A military judge heard arguments for and against a finding that he was an unlawful enemy combatant, taking procedures for Hamdan’s appeal straight from Article V of the Geneva Conventions. This clearly meets American obligations under international law and decisions made in this forum are more likely to survive review in a federal court.

The change in policy also comes on the heels of a Marine General’s report that 400 of the 600 detainees in Bagram pose no threat to the Afghan government or to American forces. We did a better job with detention in Iraq, isolating hardcore foreign fighters, providing job training and community support to the local flunkies who took potshots at American forces for a quick buck, and prosecuting as many detainees as possible in the Iraqi Central Criminal Court.  We should follow a similar template in Afghanistan.

For related discussion of the merits of the American presence in Afghanistan, watch today’s policy forum at Cato, Should the United States Withdraw from Afghanistan? It streams live at noon today, featuring Malou Innocent, Ted Galen Carpenter, and Christopher Preble.