Bagram Detention Centre has been officially transferred to Afghan control today, with the fundamental question of sovereignty – who has the right to arrest and detain Afghans on Afghan soil - still not resolved. The US insists it still has the right; the government says this is illegal. On Saturday (8 September 2012), President Karzai, General Allen, the commander of ISAF and US forces and James Cunningham, the new US ambassador, met to try to thrash out their different interpretations of the Bagram Memorandum of Understanding (MoU) which was signed six months ago and forms the basis for the handover. According to a government official, it was a ‘bad meeting’ with ‘hard talk’ and, even as the handover ceremony went ahead, says AAN Senior Analyst Kate Clark, the ambiguities inherent in the MoU are unravelling for all to see.

On first reading the Bagram MoU (officially called the Memorandum of Understanding on the ‘Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan’), like everyone else, I assumed it represented a real shift towards Afghan sovereignty. I assumed that, after the stipulated 6 month period, ie by 9 September 2012 (1), Bagram detention centre and its current and future inmates would have been transferred to Afghan control.

In May, after re-reading this MoU and another on Special Operations signed in early April (for reporting and text, see here), getting hold of a secret legal document and interviewing those involved in the handover (see reporting here), I warned that the US appeared to be contemplating not a once and for all handover of Bagram after six months, but only of the 3100 detainees who had already been there when the MoU was signed. I suspected the US military was setting up a sort of conveyor belt detention system – where they would continue to arrest Afghans, investigate them and detain those they deemed suspect without trial. For each detainee picked up in the future, there would be a six month period within which the US military would transfer them to Afghan control. Even then, it looked like the Americans might have a veto on any releases.

This has proved largely to be the case. The original 3100 detainees have now almost all been transferred. About fifty Afghans are still in American hands(2), after transfers were suspended because, it seems, the US suspected the Afghans were not serious about using detention without trial. Since the signing of the MoU, the US has detained a further 684 Afghans and they remain on the American side of Bagram. The US has said they will be ‘steadily’ transferred to Afghan hands. The question of who has the right to arrest and detain after today is still disputed. The gulf between the US and Afghan positions is now out in the open. According to the president’s spokesman, Aimal Faizy:

Based on the MoU, authority will be fully transferred to the Afghans on 10 September with General Faruq Barakzai in charge. As to new prisoners, it will be illegal after 10 September for the US to detain Afghans… Foreigners cannot detain Afghans. There must be no unilateral operations. All special operations must be joint [ie Afghan/US], with a warrant, and if anyone is detained, they should go to the Afghan authorities within 72 hours. (3)

Faizy said the president had called the continuing detention of Afghans and, in particular, the holding of the 684 captured after the signing of the Special Operations MoU ‘illegal’. The US now were still detaining Afghans, he reported Karzai as saying, even though they had no right to do this. Moreover, homes were still being raided without the legally mandatory judge’s warrant. ‘

Compare Faizy’s remarks with the line from the US Forces Afghanistan spokesperson, Colonel Thomas Collins:

Per the Detentions MOU, the U.S. does not intend to conduct long term detention operations; however, consistent with the Detentions MOU and the … Special Ops MOU, …the U.S. retains the authority to capture and hold detainees who have been captured in accordance with the Law of Armed Conflict. The U.S. fully intends to continue to transfer, as agreed, Afghan national detainees captured during military operations, to the GIRoA [Government of the Islamic Republic of Afghanistan] to be held in accordance with Afghan law… In short, any Afghan nationals detained at the Detention Facility in Parwan on or after March 9, 2012 will go into the same transfer processes established for pre-March 9, 2012 detainees, and will be steadily transferred to GIRoA.

The Afghan government seem only recently to have woken up to just how far its reading of both MoUs differs from the Americans’. The text of the Bagram MoU is certainly ambiguous. In key clauses, the timing of mandated events is not specified or, when there is a specific deadline, what exactly it refers to is unclear. For example:

3. The United States reaffirms … that, consistent with the provisions of this MoU, it is to transfer U.S. detention facilities in Afghan territory to Afghan control.

4. The United States reaffirms that it is to transfer Afghan nationals detained by U.S. forces at the Detention Facility in Parwan (DFIP) to Afghanistan according to the provisions of this MoU.

6 c) The United States Commander at the DFIP is to retain responsibility for the detainees held by the United States at the DFIP under the Law of Armed Conflict during the processing and transfer period, which is not to last more than six months.

The MoU does not say when the detention facilities and inmates will be transferred (articles 3 and 4) or whether the six month transfer period is a one-off or will be applied successively to each Afghan detained in the future (6c).

In the Special Operations MoU, there are fewer ambiguities. It specifies that special operations must be ‘approved by the Afghan Operational Coordination Group (4) and conducted by Afghan Forces with support from U.S. Forces in accordance with Afghan laws.’ Special operations that are expected to result in detention or the search of a residential house or private compound must be authorized in accordance with Afghan laws [ie there must be a judicial warrant] and conducted only by Afghan forces, with US help only if requested (article 5). The MoU also says that ‘any Afghan nationals detained by U.S. Forces outside special operations are to be released or transferred to Afghan authorities to be prosecuted or held in accordance with Afghan laws, including Additional Protocol II to the Geneva Conventions.’ (article 9)

This looks much clearer - although a clause specifying that international forces could not unilaterally detain anyone would have been even less unambiguous. At the time of this MoU’s signing, I wrote that it gave the Afghan government a real opportunity to take back sovereignty, but that it had to be serious about this as it was also perfectly to envisage the US retaining effective control of the capture of suspected insurgents, allowing the operations to have an Afghan face only.

But Bagram and special operations are not just issues of sovereignty, but also of basic legal protections. Internment can be legal when a state is engaged in armed conflict, but it is a hugely risky step to take, given that it infringes citizens’ most basic liberties. Rather than opening up the issue for debate, however, the government opted for secrecy. The ‘legal basis’ for the introduction of detention without trial, apart from Additional Protocol II of the Geneva Conventions, referred to in both the MoUs, has been an, apparently unpublished, presidential decree and a secret ministerial procedure. This was signed by the ministers of defence, interior and justice, the attorney general, director of NDS and the head of the Supreme Court and can be read here.

In May, even as the Afghan state started to implement internment, the president’s spokesman denied it was doing so. To be fair, there appears little appetite for detention without trial on the Afghan government side and it was pushed through by the Americans. They wanted to ensure those suspected of involvement in the insurgency did not get freed via the often corrupt Afghan judicial system.

What all the secrecy has meant was virtually no debate on detention without trial in parliament or the media. Even Afghan legal scholars have only belatedly questioned whether it is even legal under the constitution (read their reasoning in an Open Society Foundations report). Ultimately, the government’s lack of openness has harmed its interests. Public debate on internment might have been difficult, but it would have left the government in a stronger position to face the Americans.

The US undoubtedly has the more devious lawyers, superior military strength and better PR advocates. It funds, trains and provides essential support to the Afghan army, NDS and police and much of the rest of the state. It controls the physical and geographical space at Bagram. This all means that the Afghan government has already lost much of its room for manoeuvre. The Americans, of course, want to continue to capture and detain those they suspect of running the insurgency – this is of central importance to them. But Karzai has also shown stubbornness when it comes to trying to gain control of prisoners and night raids and, after all, these are still Afghan citizens being arrested on Afghan soil.

The ceremony at Bagram has now gone ahead, although it may not be judged the ‘splendid’ occasion previously announced, given the angry words spoken between the allies in private. Some of the bland reporting on the ceremony has failed to relay the depth and seriousness of the continuing conflict over sovereignty – although other outlets have done better (see here and, previously here). What the transfer of Bagram detention centre actually means remains in doubt and needs watching. It will be interesting to see who emerges stronger from this struggle.

(1) The handover was delayed by a day because of the national commemoration of the death of Ahmed Shah Massud on the 9th.

(2) There are also about fifty foreign prisoners, mainly Pakistani, whose transfer was not envisaged under the current handover (according to a senior Afghan official at Bagram in an interview with AAN in May). They remain housed in two blocks still under US control. However, the presidential spokesman told AAN in September that the government is also pressing for these men also to be handed over.

(3) The 72 hours is a constitutional stipulation.

(4) Article 3 of the Special Operations MoU gives the following definition:

The OCG is an Afghan entity manned by Afghan personnel from security and law enforcement agencies. Among its responsibilities, the OCG reviews and approves special operations missions, participates in intelligence fusion, monitors mission execution, makes notifications to Provincial Governors, and makes reports to senior Afghan command authorities. Regional OCGs are being established and are expected to have responsibilities similar to the headquarters OCG.

(5) Additional Protocol II acknowledges that when a state is at war, it may deprive its citizens of ‘their liberty for reasons related to the armed conflict.’ There are obvious grounds for concern for its use in Afghanistan, given that the war is open-ended - prompting the question of when and how an individual may no longer be deemed a threat - and the Taleban, not identified by uniform or membership card, mingle among the civilian population, making false arrest easy. Under internment, people are detained not for what they are suspected of having done – when the criminal law would prosecute them - but because of what it is feared they might do if they were free. This makes defending oneself especially difficult.