I reported last week that human-rights groups have been using Gen. Stanley McChrystal's strategic assessment to argue for detention reforms in Afghanistan. One of my sources for that story, Sahr MuhammedAlly, is among the authors of a new report from Human Rights First that cites both McChrystal and Marine Reserve Gen. Doug Stone to make the argument that reforming the detention system isn't just a human-rights issue but will "more fully align U.S. detentions with strategic priorities."
Earlier this year, there was some skepticism about the amended Detainee Review Board procedures at Bagram, since they resemble the prior detention review procedures under the last administration that were deemed unconstitutional. Yet the HRF report actually says the reforms the Obama administration made are significant, but don't go far enough. HRF wants to see Afghan judges brought into the review process; it wants access to detention centers -- including Bagram -- for human rights groups; and it wants improvements in detainees' ability to "examine and challenge the evidence against them, exclude evidence gained through coercion, and create a combined repository of information." HRF wants to see detainees get legal representatives in the DRB, since even the improved procedures have them being assisted by non-lawyer "personal representatives" instead. The report also recommends making the transcripts of DRB proceedings public, and shifting detention authority over to the Afghans in part by strengthening their criminal-justice system.
But one of the most important recommendations is the one the U.S. is most likely to ignore: the repatriation or release of non-Afghans who were brought to Afghanistan in order to shield them from the eyes of U.S. courts. Back in April, Judge John Bates ruled that foreign detainees captured in a third country and brought to Bagram had habeas rights, just like detainees at Gitmo. Later, Gen. David Petraeus indicated that the FBI had been to Bagram to mirandize some detainees there. We've seen little movement on this issue since then. Given how complicated and lengthy the process of reviewing detainees at Guantanamo has been (as a result of the previous administration's practices), the administration is probably going to kick this legal time bomb down the road as long as it can.
There will be other good recommendations in the report that the administration will probably ignore, which is a reminder that while the strategic goals of the U.S. military and huma- rights groups may sometimes align in theory, they don't always in practice.
-- A. Serwer
