Catch-and-release for terror detainees

The Afghan government has likely released dozens of Gitmo detainees, and many more from Bagram, instead of trying them. A cable released by WikiLeaks that is available on the New York Times’ website underscores the difficulties that both the Bush and Obama administrations have had in transferring war on terror detainees to Afghan custody. The cable, which originated at the U.S. Embassy in Kabul on Aug. 6, 2009, begins:

“On numerous occasions we have emphasized with Attorney General Aloko the need to end interventions by him and President Karzai, who both authorize the release of detainees pretrial and allow dangerous individuals to go free or re-enter the battlefield without ever facing an Afghan court.”

The cable’s author goes on to explain that this is a problem with respect to detainees transferred from the American-run facility in Bagram to Afghan custody; detainees transferred from Guantanamo to Afghan custody; as well as narco-traffickers. When the Afghan government accepts transferred detainees, it is supposed to take certain security precautions. In some cases, the U.S. government expects the Afghans to try them in their courts. Unfortunately, it often doesn’t work out that way.

The situation with respect to detainees once held in Bagram is worrisome:

“Transfers from Bagram Theatre Internment Facility to the Afghan National Detention Facility began in Spring 2007. During that year, there was only one pretrial release. In 2008, there were 104 pretrial releases, almost all of which took place after President Karzai formed the Aloko Detainee Commission in April 2008. From January to March of 2009, there were 12 pretrial releases; and 23 pretrial releases between April and June 2009. So far in July 2009, there have been 10 pretrial releases.”

Detainees at Bagram include those individuals the U.S. military and its allies suspect of fighting for the Taliban, al-Qaida and their jihadist allies. The cable suggests that the Afghans released more than 100 detainees without trials in 2008. The Americans expected at least some of them, and probably many of them, to be tried. The Afghans were on pace to release about the same number of detainees without trying them in 2009.

The situation with respect to detainees transferred from Guantanamo to Afghanistan is problematic as well. The cable notes:

“An August 2005 exchange of diplomatic notes between the USG and the GIRoA provides the legal basis for the GIRoA’s detention and prosecution of detainees transferred into Afghan custody. Even though a multiagency GIRoA delegation under the Aloko Detainee Commission screens all BTIF detainees who are transferred to the ANDF and assures the USG that these detainees will be prosecuted in an Afghan court, there have been 150 detainees released from the ANDF without trial since 2007, including 29 former Guantanamo Bay (GTMO) detainees. The total number of transfers to date from BTIF to ANDF is 629 detainees, plus 41 from GTMO.”

It is not entirely clear if the Gitmo detainees referred to were all supposed to be tried in Afghan courts, but it certainly appears that way. It also makes sense when put into context. About 200 Afghans have been transferred from Guantanamo to their home country, according to data compiled by the New York Times. Many of these former detainees probably were not slated to stand trial. But the Americans did expect that some of them would.

The cable suggests that the Afghans have released dozens of former Gitmo detainees who the Americans thought should be tried.

All of this underscores a central point: The Defense Department never wanted to be the “world’s jailer.” Nor did it want to move hundreds of detainees to the U.S. to stand trial — a move that would have caused a host of problems. But America’s allies, including Afghanistan, can’t be counted on to hold detainees, let alone try them, even when the U.S. thinks a trial is appropriate.

And judging by this State Department cable, the recidivism rate for former Bagram detainees may be even worse.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

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