Identifier
Created
Classification
Origin
07KABUL369
2007-02-05 15:18:00
SECRET//NOFORN
Embassy Kabul
Cable title:  

DETAINEE LEGAL FRAMEWORK: GOA REPRESENTATIVES

Tags:  KAWC MARR MOPS PGOV PREL PHUM AF 
pdf how-to read a cable
VZCZCXYZ0014
OO RUEHWEB

DE RUEHBUL #0369/01 0361518
ZNY SSSSS ZZH
O 051518Z FEB 07
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC IMMEDIATE 5927
INFO RUEAIIA/CIA WASHINGTON DC PRIORITY
RHEFDIA/DIA WASHINGTON DC PRIORITY
RUEKJCS/JOINT STAFF WASHINGTON DC PRIORITY
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY
RUEKJCS/SECDEF WASHINGTON DC PRIORITY
RHMFISS/HQ USCENTCOM MACDILL AFB FL PRIORITY
RHMFISS/CDR USEUCOM VAIHINGEN GE PRIORITY
S E C R E T KABUL 000369 

SIPDIS

NOFORN
SIPDIS

STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (JRELK),S/WCI
(MSTAMILLO),L/PM (EPELOFSKY)
NSC FOR AHARRIMAN
OSD FOR ARICCI
CENTCOM FOR CFC-A, CG CJTF-76, POLAD, CSTC-A

E.O. 12958: DECL: 02/05/2017
TAGS: KAWC MARR MOPS PGOV PREL PHUM AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: GOA REPRESENTATIVES
PROVIDE INTERIM RESPONSE

REF: A. STATE 11550

B. KABUL 68

Classified By: Political-Military Affairs Counselor Carol A. Rodley; re
asons 1.4(b) and (d).

S E C R E T KABUL 000369

SIPDIS

NOFORN
SIPDIS

STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (JRELK),S/WCI
(MSTAMILLO),L/PM (EPELOFSKY)
NSC FOR AHARRIMAN
OSD FOR ARICCI
CENTCOM FOR CFC-A, CG CJTF-76, POLAD, CSTC-A

E.O. 12958: DECL: 02/05/2017
TAGS: KAWC MARR MOPS PGOV PREL PHUM AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: GOA REPRESENTATIVES
PROVIDE INTERIM RESPONSE

REF: A. STATE 11550

B. KABUL 68

Classified By: Political-Military Affairs Counselor Carol A. Rodley; re
asons 1.4(b) and (d).


1. (S/NF) Summary: Afghan interagency national security,
military, and legal experts have not arrived at a final
position on how the GOA will deal with "security detainees"
-- i.e., those individuals that the GOA is unlikely or unable
to prosecute in the Afghan national security or criminal
justice system. Regarding the six "test cases" (reftel B)
that the GOA has begun to review, the general consensus among
the GOA legal experts is that five of the six cases appear
prosecutable under Afghan criminal or national security law.
They said that successful prosecution of some cases will
require additional evidence obtained by further
investigation, interview, and witness statements. Post
believes that backfilling the Bagram Theater Interment
Facility (BTIF) with detainees from Guantanamo Bay (GTMO) is
premature and counterproductive in the near- to medium-term.
We will continue our engagement with the GOA, aimed at
bringing the Afghan interagency review to conclusion by
mid-February. End Summary.


2. (S) Pursuant to reftel, Charge requested January 31 that
Deputy National Security Advisor Engineer Ibrahim Speenzada
provide an interim response regarding the legal framework the
GOA intends to apply to detainees transferred from BTIF or
GTMO to GOA custody. (Note: The Afghan Office of the
National Security Council had just completed its quality
control scrubbing of the six "test cases" noted in reftel B,
and the test cases had been distributed to Afghan interagency
national security, military, and legal experts o/a January


31. Per reftel B, post previously had requested that the GOA
provide a collective written response within two weeks of the
Afghan interagency representatives receiving the translated
test cases. End Note). Per reftel, Charge put specific
emphasis on the question of how the GOA would handle
detainees not clearly prosecutable under Afghan national
security or criminal law. DNSA Ibrahim convened a meeting on
February 5 of Afghan interagency experts to provide this
interim feedback. The Afghan experts were well-prepared and
able to discuss the details of the "test cases" (reftel B)
with facility. A list of Afghan and USG attendees is
provided in para 8.

--------------
SECURITY DETAINEES
--------------


3. (S) POLMIL Counselor asked the Afghan legal experts what
legal basis they would use for detaining security detainees
-- i.e., those individuals that the GOA is unlikely or unable
to prosecute in the Afghan national security or criminal
justice system. None of the experts was able to offer a
substantive reply. DNSA Ibrahim noted that the Afghan review
is still ongoing, and suggested Afghan and U.S. experts
reconvene in the next few days to discuss this and other
issues further. He said it was his intention to provide a
definitive, written response by mid-February of the laws and
procedures the GOA intends to apply to transferred detainees.
(Comment: From the side-bar discussions in Dari that broke
out around the table, in response to this question, it was
clear that the GOA interagency has not yet arrived at a
position on this point. End Comment)

--------------
"TEST CASES"
--------------


4. (S) The Afghan experts provided preliminary feedback on
their review to date of the six "test cases" (ref B). The
general consensus that emerged was that five of the six cases
appear prosecutable. They said that successful prosecution
of some of the cases will require additional evidence
obtained by further investigation, interviews, and witness
statements. In that context, Deputy AG Aloko asked whether

it would be possible for GOA prosecutors to take statements
from U.S. personnel involved in the apprehension of
detainees, if the prosecutors felt that would strengthen
their case. There was also some disagreement among the
Afghan experts as to whether a certain detainee would be
prosecutable under criminal or national security law.
(Comment: Those disagreements appear resolvable with further
Afghan interagency deliberation. End Comment)


5. (S) Most of the GOA experts appeared to concur that one
case, that of a Hawala dealer suspected of laundering and
redistributing funds on behalf of Al Qaeda, the Taliban, and
Hizb-e Islami Gulbuddin (HIG),would not be prosecutable
based on the background information provided. Only Deputy AG
Aloko asserted that there would be a sufficient basis in
Afghan law to prosecute all six individuals represented by
the test cases. (Comment: Whether the prosecution in every
case would be successful, cannot, of course, be assured. End
Comment)

--------------
BACKFILLING BAGRAM
--------------


6. (S/NF) Reftel A invites Embassy's comments with regard to
the proposal under consideration to "backfill" the Bagram
Theater Interment Facility (BTIF) with detainees from
Guantanamo Bay (GTMO) as detainees are transferred from BTIF
to the Afghan National Detention Facility (ANDF). Post
believes it would be premature to do so, until we have a
clearer idea of the capacity at BTIF that will be required
throughout the spring/summer offensive. Moreover, we are
convinced that moving GTMO detainees to U.S. custody at BTIF
in the near- to medium-term will attract significant negative
public attention to BTIF, undermining our efforts to get the
ANDF up and running. It would drive the public discussion
toward questions surrounding the most difficult detainees,
undercut the image of the GOA taking responsibility for
Afghan detainees, and distract us and the GOA from making
progress on the relatively easier cases. Any such decision
needs to be carefully coordinated in advance with the GOA, to
avoid damage to our detainee operational goals in Afghanistan.

--------------
WAY AHEAD
--------------


7. (S) Post appreciates the additional guidance provided in
reftel A. We will continue our engagement with the GOA,
aimed at bringing the Afghan interagency review to conclusion
by mid-February, at which time our goal is to have a written
articulation of the legal framework and review procedures the
GOA intends to apply to detainees transferred to their
custody from BTIF and/or GTMO.

--------------
MEETING ATTENDEES
--------------


8. (SBU)

GOA:
Engineer Ibrahim Speenzada, Deputy National Security Advisor
Mohammed Eshaq Aloko, Deputy Attorney General
Sayed Zahir, Legal Advisor, National Directorate of Security
(NDS)
Said Yousuf Halim, General Head of the Legislative Institute,
MOJ
BG Abdul Majeed, Chief Judge of the Military Court of Appeal,
MOD
BG Sher Mohammad Zazai, Judge Advocate General, MOD
MG Mohammad Amin Nooristani, Director General of Legal and
Judicial Affairs, MOD
MG Abdul Hadi Khalid, Deputy Minister for Security Affairs,
MOI

USG:
Embassy POLMIL Counselor

CSTC-A Staff Judge Advocate
CSTC-A Chief of Detainee Operations
CSTC-A Senior Legal Advisor, Detainee Operations
CSTC-A Op Law Attorney
Polmiloff (notetaker)
NEUMANN