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.

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Trials Begin 6 Months After First Transfer to ANDF
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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.)

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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.)

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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.


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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.)

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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