DETAINEES: RUNUP TO FIRST TRIALS AT AFGHAN

S E C R E T KABUL 003656 SIPDIS NOFORN SIPDIS STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (SINGRAM),S/WCI (MSTAMILIO, MSHIN, ARICCI),L/PM (JDOROSIN) NSC FOR JWOOD OSD FOR MPORGES CENTCOM FOR CG CJTF-82, POLAD, CSTC-A, SOUTHCOM, JTF-GTMO E.O. 12958: DECL: 10/03/2017 TAGS: KAWC MARR PTER PGOV PINS PREL AF SUBJECT: DETAINEES: RUNUP TO FIRST TRIALS AT AFGHAN NATIONAL DETENTION FACILITY; STATUS OF TRANSFERS; EMBASSY CONCERNS REGARDING EVIDENCE REF: A. KABUL 03626 ¶B. KABUL 03277 ¶C. KABUL 02689 ¶D. KABUL 02136 ¶E. KABUL 01779 ¶F. KABUL 01755 ¶G. KABUL 01577 ¶H. KABUL 01558 ¶I. KABUL 01220 ¶J. KABUL 00956 ¶K. KABUL 10191 Classified By: Pol/Mil Counselor Brent R. Hartley, reasons 1.4(b) and ( d). ¶1. (S/NF) Summary/Comment: On October 3, the first 12 detainees transferred to the Afghan National Detention Facility (ANDF) from Bagram Theater Internment Facility (BTIF) in April were arraigned before Afghan judges at the ANDF with defense counsel and the Attorney General's (AG) prosecutor present. All pled not guilty on advice of counsel. The court reconvened with a full panel of judges on October 23 and rendered verdicts in five cases. Four were acquitted, and a fifth was judged guilty but ordered released on the basis of time served in detention (see paragraph 11 for details on the five individuals). The five had been in U.S. detention for three-four years. All five detainees were charged under at least two of Articles 5, 9, 15, or 23 in the Law on Internal and External Security; three were also charged with weapons violations under the penal code. Combined Security Transition Command-Afghanistan (CSTC-A) is reviewing the evidence passed to IRoA in these cases and analyzing to what extent it was used in the trials; specifically, whether evidence such as photographs of IED-making materials were submitted to the court. IRoA plans to conduct approximately 15 trials per month. Trial procedures are a work in progress. DOD's Criminal Investigation Task Force-Afghanistan is providing welcome additional evidentiary material on GTMO detainees releasable to IRoA. Post strongly suggests that the Department and participants at the Worldwide Detainee Conference in Atlanta from 6-8 November discuss the process of evaluating and sanitizing evidence for transfer to IRoA. CSTC-A has cleared this cable. End Summary. -------------- -------------- Trials Begin 6 Months After First Transfer to ANDF -------------- -------------- ¶2. (S/NF) On October 3, the first 12 detainees transferred to the Afghan National Detention Facility (ANDF) in April were arraigned before a panel of four Afghan judges at the ANDF. Each detainee was formally advised of the charges against him and his right to representation and was asked to enter a plea. All pled not guilty on advice of defense counsel. When one judge began questioning a detainee, the defense counsel told the judge that he could not question his client until after defense counsel had discussed the indictment with him. The judge agreed and informed the parties that the questioning of the detainee would not begin until after defense counsel had time to prepare the case. The detainees are represented pro bono by counsel from the International Legal Foundation-Afghanistan (ILF-A). Defense lawyers advised CSTC-A there is a legal requirement to wait at least ten days from the date of arraignment until the start of a criminal trial. The judges indicated that they wish to finish all 12 cases before arraigning the next set of detainees. Proceedings are conducted in Dari; judges instructed the prosecutor that it is his responsibility to have an interpreter present to translate into Pashto for the detainees. ¶3. (S/NF) The International Committee of the Red Cross advised Post and CSTC-A on October 14 of three detainee concerns: A) While a copy of the charges against them was given to their lawyers, the detainees themselves were not given a written copy of their indictments--Post is working with the court to ensure detainees are given their own copies; B) When they left the courtroom on October 3, the detainees did not know when they would next appear in court; C) The detainees claimed to have been "humiliated" by having to change from Afghan clothing into orange prison jumpsuits for their arraignment. ICRC advised that orange is a color normally worn by women in Afghanistan and because the two-piece jumpsuit has short sleeves and a shirt not covering the pelvic region, detainees perceive it as both childish clothing and peculiarly American. CSTC-A has raised this concern with ANDF Commander BG Safiullah. ¶4. (S/NF) At Post's suggestion, on October 23, Supreme Court Administrator Halimi convened seven judges, two prosecutors, and the deputy of the ILF-A to discuss scheduling. PolMilOffs suggested the court aim to conduct 30 trials per month, and all present agreed to reconvene the next day (October 24) to formulate a court schedule; per ref A, however, all but Halimi, then went out to ANDF and held the five trials. On October 24, Supreme Court Administrator Halimi, with defense, prosecution, and three judges present, informed CSTC-A Detainee Operations Legal Adviser and PolMilOffs that all parties should respect the decision of the court and that approximately 15 trials per month will be scheduled. ¶5. (S/NF) (NOTE: Due to security restrictions on travel to ANDF, EmbOffs could not attend the arraignment or October 23 trials. CSTC-A's Chief of Detainee Operations and his legal adviser remained outside the temporary courtroom and briefed Post on developments. Ministry of Defense Legal Adviser Major Mohammed Nader also observed the proceedings and briefed CSTC-A attendees on the details of the arraignments. ¶6. (S/NF) (NOTE: The safety of judges and court administrative personnel will be of continued concern since their commute is along the most dangerous road in Kabul. The Ministry of Defense has assumed the responsibility to transport judges. On October 3 and 17 ANDF guard force personnel transported the four judges and three court support personnel to ANDF from the Kabul Supreme Court building and back to Kabul in what appeared to the public to be civilian vehicles; the soldiers removed their caps and wore civilian shirts. USAID's Supreme Court mentor has advised that the judges found the transportation arrangements acceptable. Post is also exploring more secure transportation alternatives with ISAF, which has a program for transporting Afghan VIPs.) -------------- Verdicts in First Five Trials -------------- ¶7. (S/NF) Per ref A, the detainee trial court reconvened unexpectedly after a full panel of six judges transported themselves out to ANDF on October 23 and rendered verdicts in five cases. Four were acquitted, and a fifth was judged guilty but ordered released due to three years of time served in detention. The five had been in US detention for three-four years. To make the verdicts final, a copy of the judges' decision along with a thumbprint of the detainee indicating he agrees with the court's decision is forwarded to the National Directorate of Security (NDS). Once NDS receives this paperwork, the detainees will be released. Although the law apparently allows for this process to take up to ten days, Supreme Court administrative official Halimi advised the prosecutor that this should be done within three days. NDS will then forward a copy of the letter to ANDF Commander BG Safiullah indicating that the detainee should be released. (Comment: Halimi has personal experience with release after U.S. detention. He confided to PolMiloff at their first meeting on October 23 that he had spent a year in the BTIF himself.) ¶8. (S/NF) ANDF Commander BG Safiullah and the Ministry of Defense legal adviser Nader monitored most of the court proceedings and advised the CSTC-A Detainee Operations chief and legal adviser privately that prosecutors were not prepared and evidence presented was weak. In contrast, they characterized the ILF-A defense team as well prepared. Each trial lasted about 45 minutes, which CSTC-A was advised is the norm since most trial work is done in the investigative phase. ¶9. (S/NF) Post briefed Malik Quraishi, ONSC Director of Policy and Oversight, on October 24 about initial and verified reports of the trials. Quraishi said he would inform Deputy National Security Adviser Engineer Ibrahim Spinzada and ensure that BG Safiullah is briefed on proper release procedures. Senior officials who would normally have oversight of court processes--Supreme Court Chief Justice Azimi, Detainee Review Board member Supreme Court Justice Rashid, and Supreme Court Administrative Chief Dr. Kamawi--are out of the country until October 28. It is possible that NDS or others may want to discuss the trials at the next Detainee Review Board tentatively scheduled for October 29. ¶10. (S/NF) (Comment: NDS Legal Adviser Rasoli (protect) repeatedly has shared with us his concerns that prosecutors and judges are influenced by bribes. Our initial assessment is that NDS investigations resulted in charging these detainees with crimes that accord with the Secret/Noforn evidence the USG has against them but that the prosecution and judiciary are not able or willing to act effectively.) -------------- Background: Five Detainees Tried -------------- ¶11. (S/NF) All five detainees were charged under at least two of Articles 5, 9, 15, or 23 in the Law on Internal and External Security; three were also charged with weapons violations under the penal code. From the evidentiary perspective, CJTF-82 had rated one case a strong one (Abdul Baki); one relatively strong (convicted detainee Amrad Gul); and the remaining three cases relatively weak. The CSTC-A Detainee Operations Legal Adviser is reviewing the evidence passed to IRoA in these cases and analyzing to what extent it was used in the trials; specifically, whether evidence such as photographs of IED-making materials were submitted to the court. (Note: Unsubstantiated reports received by CSTC-A indicate that one detainee's file contained a letter from an NDS investigator stating that the detainee was not guilty but had been caught up in a sweep of his village.) Capture information below quotes unclassified CJTF-82 information passed to IRoA: Acquitted: 1) Abdul Baki, High Threat Low Level Enemy Combatant (HT LLEC),US9AF-001238DP captured December 2003 with "IED components." Charged under Articles 5, 9, 15; weapons charge. 2) Abdul Satar, HT LLEC, US9Af-001497DP captured April 2004 "suspected of being a Taliban Commander," "implicated in a number of mine and IED attacks against Afghan and Coalition Forces, including the death of US soldiers," "allegedly trained 30 Taliban fighters in the construction of IEDs." Charged under Articles 5, 9, 15. 3) Ramatullah, Low Threat LLEC, US9AF-001656DP captured at home July 2004, "reported Taliban and HiG commander who planned and directed terrorist attacks in Ghazni, Zabul and Paktika provinces," "commands terrorist cells in these provinces," "helped Taliban supporters escape to Pakistan...or recruited them into the HiG," "reportedly planning future attacks against US forces in Ghazni," fought "against US forces in Zabul Province." Charged under Articles 9, 15. 4) Hasta Khan, HT LLEC, US9AF-001795DP captured September 2004, "during a raid to interdict the movement of foreign fighters into Afghanistan," identified as "Taliban recruiter" and "leader" of group of alleged foreign fighters; search of "foreign fighter weigh station" revealed grenades, mortar rounds, mines, other weapons, and ammunition. Charged under Articles 15, 23; weapons charge. Guilty, ordered released due to time served: 5) Amrad Gul, HT LLEC, US9AF-001832DP captured September 2004 after "U.S./Coalition Forces were informed of a weapons cache" on his compound; several weapons, "spider devices for IED use," and ammunition discovered; a second weapons cache 200 meters in front of his compound contained "anti-tank mines, more spider devices and two letters written by Siraj Haqqani, leader of the Haqqani network, which instructed Gul's brother to kill anyone who voted for President Karzai." Charged under Articles 5, 9, 23; weapons charge. -------------- Trial Preparations -------------- ¶12. (S/NF) The initial arraignment on October 3 was preceded by extensive preparations in August and September (ref C). On August 20, Chief Justice Azimi's Administrative Chief Dr. Kamawi and USAID's mentor to the Supreme Court surveyed space for a temporary courtroom and offices at the ANDF. They also clarified that court personnel were unable to transport themselves to the ANDF (ref C). CSTC-A determined in September that a multi-purpose building with space for a courtroom and offices (ref C) will not be constructed, but Kamawi confirmed that the temporary space in ANDF will be adequate for conduct of trials, at least in the short term. Dr. Kamawi also advised us that a defendant does not obtain defense counsel until after the judge informs him of charges at the arraignment, after which there is a recess of several days to allow defense to prepare. ¶13. (S/NF) On September 29, the Supreme Court's Detainee Review Board (DRB) representative, Justice Rasheed Rashid, met with judges appointed to hear detainee cases following the Afghan courts' July reorganization (ref C). Post's Rule of Law Coordinator, CSTC-A's Chief of Operational Law, and PolMilOffs also attended. Justice Rashid advised that Mohammed Tayeb, Chief Judge of the Second Central Primary Court, had been removed from his position due to an impropriety apparently related to his improperly releasing individuals held by the Afghan Government at other facilities, which were not further specified. The new Central Primary Court Chief Judge, Abdul Karim Qanet, was selected in Tayeb's stead to preside over the chamber of judges from the Central Court's Public Security Division. Supreme Court Justice Rashid advised that since most detainees are Pashtun, the court had appointed all Pashtun judges. The list of seven judges the Supreme Court later provided to Post on October 1, however, included a Tajik and a female Hazara judge, both of whom were present at the October 3 arraignment. ¶14. (S/NF) At the September 29 meeting, PolMilOff briefed the judges on the history and numbers of transfers from Bagram Theater Internment Facility (BTIF) and Guantanamo Bay (GTMO) to the ANDF and the DRB decision regarding acceptance of photographs in lieu of physical evidence (ref G). A subsequent discussion addressed sources and translation of evidence, transportation issues, confirmation that case files had been reviewed and allocated to judges, and whether a date could be set for trials to start. Post emphasized that NDS investigations and the Attorney General's (AG) prosecutor's review of charges have kept pace with the rate of transfers but that with 55 detainees now indicted, the fact that trials had not yet started could impede the rate of further transfers since ANDF can only hold a limited number of detainees. The judges then did start trials on October 3. As previously recommended by the Office of the National Security Council (ONSC),Post also asked Justice Rashid and the judges if the court wished to have observers present; the judges took this issue under consideration and have not yet advised of their decision. ¶15. (S/NF) (Comment: Trial procedures are a work in progress. On September 29, judges had advised that neither defense attorneys nor the prosecutor had to be present at the initial arraignment. ILF-A Director Ibrahim Hassan, however, advised PolMilOff on October 1 that defense attorneys should attend the initial arraignment, and USAID's Supreme Court mentor obtained concurrence from Kamawi and the judges for the defense attorneys to be present. Hassan arranged for six attorneys to meet with detainees on October 2. Three defense attorneys represented detainees at the arraignment and afterwards met individually with each of the 12 detainees to start preparing their defense. Also, upon arrival at ANDF on October 3, the judges advised that the national security prosecutor must be present; proceedings began after the AG prosecutor arrived.) -------------- Transfers, Charges, Evidentiary Issues -------------- ¶16. (S/NF) ANDF's population of 136 includes detainees transferred from both BTIF and GTMO. Per the draft CSTC-A Transfer Protocol (which governs transfer of detainees from GTMO) and the CSTC-A - CJTF-82 - POLMIL Transfer Protocol (which governs transfer of detainees from BTIF),PolMilOff notifies either ONSC's Quraishi or Salehi that a transfer will occur and afterwards provides a list of all detainees transferred; this has been done for each transfer to date. ¶17. (S/NF) As of October 24, with five cases completed, two are pending judgment, and five detainees are awaiting trial. Forty-three others have been charged and are awaiting arraignment, and NDS has relayed charges for 26 more detainees transferred in July to the AG prosecutor. After coordinating with CSTC-A's Operational Law Chief and Criminal Investigation Task Force (CITF)-Afghanistan at Bagram Air Field on access to material in a CITF database containing "For Official Use Only" (FOUO) material on GTMO detainees, Post passed supplementary evidentiary material to ONSC on October 24. As a result, NDS is now reevaluating its charges against the first five detainees transferred from GTMO in August, and NDS is conducting investigations into cases of the remaining 50 detainees transferred from August to October. ¶18. (Comment: Post recommends that the Department and participants at the Fourth Annual Worldwide Detainee Conference in Atlanta from 6-8 November discuss the process of evaluating and sanitizing evidence for transfer to IRoA. It is unclear to Post if OSD is tasking CITF to review Afghan GTMO files systematically. Review of BTIF files was performed by Detainee Assessment Branch military intelligence personnel. For effective IRoA prosecution, Post believes potential evidence must be reviewed for releasability with a view to criminal prosecution. The evidence available to IRoA on GTMO detainees prior to CITF's October involvement gives us cause for concern. For example, the full text of the Secret/Releasable to USA, AFG evidentiary GTMO documentation SIPDIS on August GTMO transferee ISN 943, who was captured in January 2003 reads, "Upon returning home for the last time in late 2003, Ghani's father sent Ghani to get his brother, who was working in the Adi Gar Mountains. After Ghani arrived at the compound in the Adi Gar Mountains, he and his brother immediately headed back home on a motorcycle that his brother claimed to own. Ghani's brother was driving and carried a rifle by a shoulder strap and two grenades in his pocket. On this motorcycle ride home, Ghani's brother attempted to aim his Kalashnikov rifle at approaching U.S. forces. Ghani was captured." The full text of the Secret/Releasable to USG, AFG, evidentiary portion of the GTMO documentation on September transferee ISN 951, also captured in January 2003, reads, "Nasir was suspected of having knowledge about future attacks on US and Allied Forces in Afghanistan.") ¶19. (S/NF) Administrative issues regarding transfers continue to surface. CSTC-A is working with GTMO and BTIF to ensure data on detainees' conduct while in US Theater Internment Facilities is relayed to the ANDF commander upon transfer to help him determine the appropriate custody level for a given detainee upon arrival. The U.S. Internment Serial Number (ISN) is not appearing on all detainee documentation as paperwork moves from NDS to the prosecutor to the court. Detainees in ANDF are identified by ISN and photograph, and given many detainees have the same name, the ISN is essential data for identifying the appropriate detainee (ref B). BTIF has now relayed a list to Post of all BTIF detainees, and CSTC-A Political-Military Affairs has tasked a cleared American to transliterate English terms so we can provide ONSC with the information IRoA has told us they need to identify any Afghan detainee: ISN, English name, Dari name (the way the name is said/written by Afghans, not a transliteration of the English),father's name (in Dari), province, village, and date of capture. BTIF has also provided a Dari list of all detainees transferred as of October 10, which was passed to ONSC that day. These lists will not only enable IRoA to delegate research on detainee issues to the appropriate provincial or other office when they need to respond to GTMO Administrative Review Board queries and other questions that require research on detainees but will also enable CSTC-A lawyers and Post to track and discuss detainee cases clearly with NDS, the prosecutor, and the court (ref C). WOOD