DETAINEES: UPDATE ON TRANSFER-RELATED ISSUES

S E C R E T KABUL 002136 SIPDIS NOFORN SIPDIS STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (SINGRAM,JRELK), S/WCI (MSTAMILIO, MSHIN),L/PM (JDOROSIN) NSC FOR AHARRIMAN OSD FOR JALIOTTA, ARICCI CENTCOM FOR CG CJTF-82, POLAD, CSTC-A, SOUTHCOM, JTF-GTMO E.O. 12958: DECL: 05/10/2017 TAGS: KAWC MARR PTER PGOV PINS PREL AF SUBJECT: DETAINEES: UPDATE ON TRANSFER-RELATED ISSUES REF: A. KABUL 01779 ¶B. KABUL 01755 ¶C. KABUL 01577 ¶D. KABUL 01558 ¶E. KABUL 01220 ¶F. KABUL 00956 ¶G. KABUL 10191 Classified By: Acting Deputy Chief of Mission Carol A. Rodley; reasons 1.4(b) and (d). ¶1. (S/NF) Summary: Transfers to the Afghan National Detention Facility (ANDF) resumed on June 3, and the ANDF now contains 56 detainees. The National Directorate of Security (NDS) has relayed charges for the first 12 detainees transferred in April to the Attorney General's prosecutors, who have accepted the charges. After Detainee Review Board members expressed serious concern about the safety and effective workday of NDS investigators traveling daily to ANDF via a route considered the most dangerous in Kabul, the ANDF commander arranged interim accommodation for them at ANDF. Three requests for PTS release of three detainees currently in the Bagram Theater Internment Facility were denied; the Office of the National Security Council (ONSC) subsequently requested that one, already slated for transfer, be transferred as soon as possible to ANDF and asked that the other two be approved for transfer. An Afghan delegation has begun investigating cases of Afghan detainees at Guantanamo Bay to assess how they might be prosecuted. As we move forward with the transfer and prosecution process, we remain alert to the possibility that Afghan corruption may influence some outcomes. End Summary. -------------- -------------- Transfers to Afghan National Detention Facility Resume -------------- -------------- ¶1. (S/REL TO GOA) Ahead of transfers of 28 detainees on June 3 and 16 detainees on June 19 from the Bagram Theater Internment Facility (BTIF) to the Afghan National Detention Facility (ANDF),polmiloffs alerted the Office of the National Security Council (ONSC). After each transfer, polmiloffs provided Mr. Zia Salehi, ONSC Situation Room Director, with a list of the transferees. The ANDF now contains 56 detainees. -------------- -------------- Status of Charges, Relays of Evidence, Investigations -------------- -------------- ¶2. (S/NF) On June 21, Mr. Zuhore-u-Rasoli, Legal Adviser to National Directorate of Security, advised CSTC-A's Chief of Operational Law and polmiloff that NDS formally referred charges on June 12 to the Attorney General's prosecutorial office for the first 12 detainees transferred from the BTIF to ANDF in April. At the Detainee Review Board (DRB) on June 24, Deputy Attorney General (AG) Shinwari advised that the charges have been reviewed and accepted by AG prosecutors who handle national security crimes. Cases will now be assigned to prosecutors and heard in national security courts, and AG prosecutors will serve detainees formally with charges. Detainees have, however, previously been advised informally by NDS investigators at ANDF of the charges against them. After receiving a copy of the formal charges, detainees will have 5-10 days to prepare their defense. They may represent themselves, be represented by paid counsel, or be assigned a court-appointed lawyer. ¶3. (S/NF) Rasoli advised that the minimum typical sentence for charges filed is seven years; some detainees have been charged with crimes that typically result in more severe sentences, to include the death penalty. For the first 12 cases, NDS relayed over 500 pages of investigatory material to the AG's office. Salehi advised on June 28 that he will ask Deputy National Security Adviser/NDS Deputy Engineer Ibrahim Speenzada for clearance to provide post with a copy of the finalized charges against the first 12 transferees; reftel B contains an interim list. ¶4. (S/NF) All US evidentiary and GOA investigatory files for detainees now in ANDF were relayed to ONSC (and via ONSC, to NDS and the Ministry of Interior--MOI) before/by May 13. Translations of evidentiary files for all other detainees on the current Order of Merit list were relayed to ONSC on July 3 along with a revised translation of the US evidentiary file for detainee US9AF-001417DP which includes a murder allegation (reftel B). Mr. Malik Quraishi (please protect), ONSC Director of Policy and Oversight, confirmed to polmiloff on June 25 that although NDS has the lead on investigating cases, MOI not only investigates cases involving criminal action but also provides a check on any perceived NDS bias regarding a detainee's ethnic background. ¶5. (S/NF) NDS' Rasoli advised us on June 21 that NDS has 70 investigators, 15 of whom are currently assigned to work exclusively on detainee cases. On July 5, Rasoli advised that investigations of the 28 June 3 transferees' cases have been completed and that six additional investigators have been assigned to cases of the 16 transferred on June 19. Rasoli has confirmed that NDS is willing to assign more investigators to detainee cases as needed. (Comment: GOA progress on these cases should be viewed through the prism of Afghan capacity: Afghanistan has some 223 registered lawyers, not all of whom practice. No legal association governs the practice of law and the legal profession's ethics. Over half of Afghanistan's 10,400 inmates are in pre-trial detention because courts cannot keep pace with arrests.) -------------- Detainee Review Board Concerns, Attendees -------------- ¶6. (S/NF) On June 24, the Afghan interagency Detainee Review Board (DRB) convened for the fourth time; attendees are listed in paragraph 8. ONSC invited ANDF Commander BG Safiullah to address concerns raised at the last DRB (reftel C) regarding the safety and workday of NDS investigators. Members concurred that if the investigators can be housed at ANDF during the workweek and avoid a daily commute together from/to Kabul, they will not be as vulnerable to attack as they are now and also be able to work more hours. More investigators will need to work at ANDF as the ANDF detainee population increases, and both ONSC and Ministry of Defense (MOD) DRB members noted that if civilian NDS investigators are killed, it will be difficult to recruit others to perform this work. CSTC-A's outgoing Chief of Detainee Operations noted the USG has not currently planned or budgeted for housing NDS investigators. CSTC-A's new Chief of Detainee Operations advised on July 3, however, that BG Safiullah has made arrangements for interim housing of NDS investigators during the workweek in the ANDF barracks; polmiloff duly advised NDS' Rasoli and Akbar Quraishi, Director of ONSC's Central Assessment Department, who is handling detainee affairs in Salehi's absence. (Begin comment: NDS investigators make $60 to $80 per month, less than a new recruit to the ANDF guard force. RSO considers the road along which the NDS investigators commute to be the most dangerous road in Kabul. On June 28, an Embassy contractor convoy was attacked on the way to the MOJ facility adjacent to ANDF; two were killed and three wounded. End Comment) ¶7. (S/NF) Given the next step for first transferees is to bring them to trial, DRB members also discussed transporting detainees to/from national security courts. MOD representative Nooristani stated that it is not the Afghan National Army's responsibility to ensure transfers are safe. The Ministry of Justice (MOJ) member, General Director of Prisons General Abdulsalim Asmat, suggested the task of transporting detainees could be delegated to MOJ. After further discussion, BG Safiullah stated that MOD is responsible for transporting detainees to court proceedings. CSTC-A has advised post that a Legal Service Location is currently being planned for ANDF; the design includes a courtroom. (Begin comment: Post recommends that GOA be briefed on plans for this building and that before it is built, DRB members agree on whether detainee trials should be conducted there. End Comment) ¶8. (S/REL TO GOA) June 24 DRB Attendees: Director of Policy and Oversight, ONSC, Malik Quraishi Director, Situation Room, ONSC, Mr. Zia Mohammed Salehi Supreme Court Justice Mohammed Babrakzai (substituting for Justice Rashid) Deputy Attorney General Shinwari NDS Legal Advisor Rasoli MOD Legal Advisor General Mohammed Yousef Nooristani MOD Legal Affairs Department Mr. Abdul Qayoum Nezami MOJ General Director of Prisons General Abdulsalim Asmat MOI Deputy Director of Intelligence General Jamaluddin US Attendees: CJTF-82 Task Force Guardian Commander CSTC-A outgoing Chief of Detainee Operations and Deputy Chief CSTC-A's Chief of Operational Law Polmiloff Embassy interpreter -------------- Palace Requests for Releases Into PTS -------------- ¶9. (S/NF) After receiving requests from provincial elders, Mr. Salehi at ONSC relayed requests from DNSA Engineer Ibrahim Speenzada for release of three BTIF detainees into Program Tahkim-e-Solh (PTS) and indicated that President Karzai supported each request. After very thorough review, CJTF-82 determined that the three detainees were not qualified for transfer under the present USG guidelines and rejected the three requests. One detainee (Mangal Khan, US9AF-001284DP) is now, however, on the list of candidates for possible transfer to ANDF. Malik Quraishi at ONSC advised on June 25 that the speed of responsiveness to these requests is key to President Karzai's effectiveness in dealing with tribal leaders. Salehi advised on June 30 that ONSC will make a formal request for detainees Mohabullah (US9AF-002783DP) and Ghulam Rassoul (US9AF-002853) to be transferred to ANDF, and ONSC's Akbar Quraishi gave polmiloff a letter on July 5 from Engineer Ibrahim requesting the two be moved in the next detainee transfer to ANDF. The letter has been relayed to CSTC-A Detainee Operations and CJTF-82 via POLAD. On June 30, Salehi (please protect) had noted that he personally does not believe they should be released. (Begin comment: President Karzai has not/not raised these detainee transfers/releases with the Ambassador. If Mangal Khan's transfer is approved, post will remind NDS that GOA had considered his case prosecutable. End comment) -------------- Potential Guantanamo Transfers -------------- ¶10. (S/NF) Following recent press coverage of US and Afghan Ministry of Defense statements on potential transfers to Afghanistan from Guantanamo Bay (GTMO),post has drafted and is now coordinating press guidance with CSTC-A, CJTF-82, and JTF-GTMO military press offices. Following coordination with the Department, post will relay the cleared guidance to the GOA National Communications Coordination Center and ensure it reaches both MOD and ONSC spokesmen. ¶11. (S/NF) Khaled Ahmad Zekriya, Director of the Fifth Political Department at the Ministry of Foreign Affairs, requested a meeting with polmiloff on GTMO transfers. He asked on June 26 if rumors that all detainees of all nationalities in GTMO would be transferred to ANDF were true. Post clarified that the 2005 exchange of diplomatic notes specifies only Afghan nationals will be transferred from GTMO to ANDF. ¶12. (S/NF) Afghan NDS and MOI investigators, along with CSTC-A's Chief of Operational Law, arrived at GTMO on June 27 to spend approximately two weeks investigating cases of the Afghan detainees there for possible prosecution. -------------- Corruption Considerations -------------- ¶13. (S/NF) DRB member Rasoli reiterated to CSTC-A's Chief of Operational Law and polmiloff on June 21 his concerns (reftel B) about detainees' sentences possibly being influenced during appeals phases by families' payments to judges or prosecutors. (Begin comment: Given even an official in Rasoli's position makes only $200 per month and that some detainees are from wealthy families, bribery may well be a significant factor in some cases as detainee trials move through the national security court system. End comment). CSTC-A's outgoing Chief of Detainee Operations advised on June 19 that a recent visitor to a new ANDF detainee had been contacted by someone claiming to be from NDS who said it would be possible to get the visitor's relative out of detention for a certain sum. The detainee's relative provided ANDF officers with a statement on the incident. The ANDF commander confronted NDS investigators working at ANDF, who denied any contacts with detainee families. ¶14. (S/NF) Of the 12 detainees initially transferred to ANDF, 11 have now had visits from their families, and the International Committee of the Red Cross (ICRC) expects a similar percentage of the detainees transferred in June will also be visited by family members. ICRC now advises families that ICRC never asks for money to facilitate a visit to a detainee or his release. ICRC's Detention Delegate agreed on June 27 to advise post of any incidents in which families tell ICRC they were asked for money to facilitate either a visit or the detainee's release. ICRC stipulated two conditions: The family must agree that ICRC can tell the USG about the incident and, if post decides to raise any such incidents with the GOA, ICRC must not be identified as the source of the information. WOOD