KABUL, Afghanistan (AP) — An Afghan judicial panel ruled Monday that administrative detention violates Afghan law, potentially thwarting a U.S. plan to hand over Afghan detainees that American officials believe should continue to be held without a trial.
President Hamid Karzai's office announced in a statement that a top-level judicial panel met earlier in the day and decided that the detention of Afghan citizens without a court trial "has not been foreseen in Afghan laws" and therefore could not be used.
The U.S. government has long held Afghans captured in operations inside the country without trial, arguing that they are enemy combatants and therefore can be detained for as long as their release might pose a danger to the international coalition.
Afghan laws have come into play only since the signing of a deal in March in which the U.S. agreed it would hand over all Afghan citizens to the Afghan government — acceding to a key Karzai demand to pave the way for a pact allowing for the long-term presence of U.S. forces in the country.
But the United States has also argued that it cannot risk the release of some high-value detainees to the notoriously corrupt Afghan court system. Even though the deadline for the handover passed on Sept. 10, the Americans are still holding more than 600 Afghans in their custody.
A U.S. official confirmed that the transfer of detainees had paused because of the dispute. The official was not authorized to give a public statement and so spoke on condition of anonymity.
Aimal Faizi, a spokesman for Karzai, said the judicial ruling followed a vigorous effort by the Americans to persuade the Afghans to adopt administrative detention. He said the topic was discussed Sunday during a contentious meeting between Karzai and the U.S. special envoy to Afghanistan and Pakistan, Marc Grossman.
"This was the intention, that administrative detention would be respected by Afghans," Faizi said.
After the meeting, Karzai issued a statement lashing out at the Americans.
"The continued holding of Afghans in American custody runs in contradiction with the spirit of mutual friendship and the provisions of the bilateral strategic partnership agreement," the statement said. It accused the United States of violating the March pact by continuing to hold some prisoners.
In an emailed response, the U.S. embassy in Afghanistan said they were still committed to abiding by the memorandum of understanding, or MOU.
"Ambassador Grossman made clear in his discussion with the president that the United States fully respects Afghan sovereignty. There is no question of our commitment to fully implement the MOU in recognition of Afghan sovereignty and the need to protect the security of Afghan civilians, Afghan national security forces and coalition forces," the statement said.
Faizi said now that the judicial panel has ruled, Karzai expects the remaining prisoners to be transferred to Afghan control "as soon as possible."
"We should respect the agreements signed between the two countries," Faizi said. He declined to say what Karzai would do if the U.S. continued to refuse to hand over the detainees by a certain date.
He did add, however, that Karzai was demanding that the U.S. government provide more details about specifically what it hoped to get out of the next pact up for negotiations — a U.S.-Afghan security agreement that is supposed to get into the finer details of how U.S. troops will operate in the country, what type of bases they will have and what legal authority they will answer to. A failure to come to such an agreement in Iraq prompted the swift withdrawal of U.S. forces from that country.
"We need to know the specifics of the security agreement," Faizi said. "We would like to know what the American government wants from us."
The New York-based Open Society Foundations said in a report issued earlier this month that the U.S. is worried that the Afghan government will either release dangerous detainees or forward their cases to the messy Afghan system. The Afghan government agreed to embrace an internment system when it first signed the accord in March, but top Afghan officials and legal experts then started to argue that it violated the Afghan constitution, according to the report.
The U.S. began detention operations at Bagram Air Field in early 2002. For several years, prisoners were kept at a former Soviet aircraft machine plant converted into a lockup. In 2009, the U.S. opened a new detention facility next door. The number of detainees incarcerated at the prison, now called the Parwan Detention Facility, has swelled from about 1,100 in September 2010 to 3,110 in the spring of this year. More continued to be added after the memorandum was signed.
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