DETAINEE LEGAL FRAMEWORK: DEPUTY NATIONAL SECURITY

S E C R E T KABUL 005958 SIPDIS SIPDIS STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (JRELK),L/PM (EPELOFSKY),S/WCI NSC FOR AHARRIMAN OSD FOR KIMMITT CENTCOM FOR CFC-A, CG CJTF-76, POLAD, CSTC-A E.O. 12958: DECL: 12/26/2016 TAGS: KAWC MARR MOPS PREL PGOV PHUM AF SUBJECT: DETAINEE LEGAL FRAMEWORK: DEPUTY NATIONAL SECURITY ADVISER AGREES TO REVIEW TEST CASES REF: A. KABUL 05615 ¶B. KABUL 05159 Classified By: Charge d'Affaires, a.i., Richard B. Norland for reasons 1.4 (b) and (d) ¶1. (SBU) Charge, A/Polmilcouns, and Polmiloff met on 26 December with Deputy National Security Adviser (DSNA) Engineer Ibrahim Speenzada to follow up on his agreement (reftel A) to convene GOA representatives to identify which Afghan laws could provide the legal basis for detention and prosecution of any detainees transferred from Guantanamo Bay (GTMO) or Bagram Theater Internment Facility (BTIF) to GOA custody. We stressed to Engineer Ibrahim that with construction of the Pol-e-Charki Block 4 (PeC B4) facility designed to hold detainees nearly complete and the new PeC B4 guard force nearly trained, we expect to begin transferring detainees by the end of February should a legal framework be identified. DNSA Ibrahim agreed to convene representatives as soon as possible. ¶2. (S) To aid in identification of Afghan law applicable to detainee cases, post has now received sanitized test cases from BTIF's Detainee Assessment Branch (DAB) of several detainees now in BTIF. These include a High Level Enemy Combatant (HLEC) and both High-Threat and Low-Threat Low Level Enemy Combatants (LLECs). The amount of evidence linked to each test case varies considerably. One case has been translated into Dari, and post is coordinating embassy and military translation of the remaining cases. DAB and the BTIF Foreign Disclosure Officer have sanitized cases both to identify information passable to GOA and to remove names and provincial/tribal information. ¶3. (C) Engineer Ibrahim agreed to convene representatives from the Attorney General's office, the National Directorate of Security (NDS),the Ministry of Defense (which will operate PeC B4),the Ministry of Interior (MOI),and the Ministry of Justice (MOJ). MOJ, per reftel B, persuaded President Karzai that existing Afghan law provides a suitable legal framework for detaining and/or prosecuting all Afghan detainees now in GTMO or BTIF. We stressed that while involvement at the Deputy Minister level is welcome, it is essential that each official be supported by a representative with in-depth knowledge of applicable law. We noted specifically that it is not clear to us if NDS law would be applicable (since we have not seen the GOA-classified portion of the law). Ibrahim noted that there have been times when the GOA did not want BTIF to release detainees who had been identified for PTS or as "No Longer Enemy Combatants" (NLECs). We observed that identifying the legal framework that would allow transfer to GOA control of such detainees would allow the GOA to make these decisions. ¶4. (SBU) Engineer Ibrahim will advise as soon as possible when the representatives can be identified and convened. (Note: Due to the Eid holiday, all Afghan offices will be closed from December 29 to January 2. End Note) He welcomed our offer of assistance from pol-mil officers, the Embassy's Rule of Law coordinator, and the CFC-A Staff Judge Advocate in reviewing the test cases. He also told us that a staff member in the Office of the National Security Council who was previously involved in legal framework issues has returned to Afghanistan and would be able to support this review effort. At the meeting of ministerial representatives, we will push for a written GOA statement within two weeks regarding whether there is a legal basis for either indefinite detention or prosecution of each of the test cases. ¶5. (SBU) Engineer Ibrahim also agreed it is necessary to set up a review board to assess detainees' cases as they are transferred to PeC B4 to ensure pretrial detention and jurisdictional issues are addressed. Teams of MOI, NDS, and MOJ representatives have currently been assessing cases at BTIF and so have relevant experience. Post plans to discuss composition and formation of a review board with the Attorney General's office and the MOJ with a view to having such a board in place before any detainee transfers begin. NORLAND