According to the Washington Post, the administration is setting up new confidential military review boards under which Afghan prisoners at Bagram would be able to challenge their detention. Months ago, Judge John Bates ruled that three non-Afghan inmates at Bagram who had been captured in third countries should be able to challenge their detention in U.S. courts. The administration appealed that ruling, and is scheduled to file a brief in that case later today.
Here's the basic idea:
Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those ordered held longer, the process will be repeated at six-month intervals.
The Bagram system is similar to the annual Administrative Review Boards used for suspected terrorists at the U.S. military prison at Guantanamo Bay, Cuba. Officials said the review proceedings at Bagram will mark an improvement in part because they will be held in detainees' home countries -- where witnesses and evidence are close at hand.
This new system then, would apply to Afghan nationals detained at Bagram. Historically speaking, few have ever challenged the authority of the military to detain enemy soldiers in an ongoing theater of war. What makes the whole situation complicated is that the U.S. isn't fighting uniformed soldiers, which makes the determination of who is an enemy and who isn't a complicated process -- and one that could create more enemies if handled improperly. Some human rights groups see enemy belligerents in Afghanistan not as "soldiers" but as criminals who, under international law, should be tried by local authorities. It should be emphasized that reports on the new system, as Lyle Denniston writes, give "no indication that the Administration is prepared to concede any role for the U.S. courts for the prisoners there." It's also not clear the new process will pass constitutional muster, since two previous incarnations of Confidential Status Review Tribunals didn't.
Some kind of review process is necessary because the circumstances under which Afghan detainees are captured are often shady -- sometimes the result of tribal rivalries, bounty hunters looking for a payoff, etc. But the new review process is also a sign of how difficult things are in Afghanistan. In a sense, human rights groups and the U.S. want the same thing: a functioning Afghan civil society in which criminals, including terrorists, can be tried by Afghan courts. It's another bad sign for American efforts there that, eight years into the war, the government doesn't trust the Afghan authorities to handle such problems -- and not without reason.
Even with the new review boards, there's just no way for a system of detention being instituted by a foreign military force to be seen as legitimate by the Afghan people. But, as Spencer Ackerman writes, there doesn't seem to be any visible plan for transferring detention authority to Afghans -- which gives you an impression of how far the administration thinks we are from a strong, functioning Afghan civil society that could handle them.
-- A. Serwer
