Identifier
Created
Classification
Origin
07KABUL558
2007-02-19 14:14:00
SECRET
Embassy Kabul
Cable title:  

DETAINEE LEGAL FRAMEWORK: READOUT FROM FEBRUARY

Tags:  KAWC MARR PTER PGOV PINS PREL AF 
pdf how-to read a cable
VZCZCXYZ0000
OO RUEHWEB

DE RUEHBUL #0558/01 0501414
ZNY SSSSS ZZH
O 191414Z FEB 07
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6233
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 000558 

SIPDIS

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: 02/13/2017
TAGS: KAWC MARR PTER PGOV PINS PREL AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: READOUT FROM FEBRUARY
12 AFGHAN EXPERTS WORKING GROUP

REF: KABUL 369

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

S E C R E T KABUL 000558

SIPDIS

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: 02/13/2017
TAGS: KAWC MARR PTER PGOV PINS PREL AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: READOUT FROM FEBRUARY
12 AFGHAN EXPERTS WORKING GROUP

REF: KABUL 369

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


1. (S) Summary: Afghan legal experts are still preparing
the GoA's response to our request for a written description
of the legal framework that the GoA would apply to
detainees transferred from the Bagram Theater Internment
Facility (BTIF) and Guantanomo (GTMO) to GoA custody at the
Afghan National Detention Facility (ANDF) (reftel).
However, based on interim feedback U.S. representatives
received at a February 12 meeting, it is clear that GoA
legal experts have not identified an Afghan legal basis for
the GoA to maintain the detention of "security detainees"
(i.e., individuals not clearly prosecutable under Afghan
criminal or national security laws). Afghan legal experts
express general agreement that the detainees in five of the
six "test cases" (reftel) would be prosecutable under
Afghan law. They emphasize the importance to successful
prosecutions of having adequate evidence. The Afghan
National Security Council staff are aiming to have the
GoA's written response on the Afghan detainee legal
framework ready by February 19/20. See para 13 for
Ambassador's
recommendation on the USG approach to the expected GoA
response.
End Summary.


2. (S) On February 12, Afghan legal experts from the MOD,
NDS, and MOJ met to discuss in detail issues related to the
detainee legal framework the GoA has undertaken to describe
in writing to the USG, in order to facilitate the transfer
of detainees from BTIF and GTMO to the GoA (reftel). The
meeting was organized by staff of the Afghan National
Security Council, and Embassy and CSTC-A representatives
were invited to attend to provide feedback. A list of

participants is provided in paragraph 13.

-------------- --------------
SECURITY DETAINEES: NO EVIDENT AFGHAN LEGAL BASIS
-------------- --------------


3. (S) Asked how the GoA would handle "security detainees"
(i.e., individuals not clearly prosecutable under Afghan
criminal or national security laws) transferred from BTIF
or GTMO to GoA custody at the ANDF, the consensus expressed
at first among the Afghan legal experts was that the GoA
would have to release such detainees. Polmiloff asked this
question several different ways, emphasizing that one of
the central objectives of the draft Presidential Decree --
which the GoA has rejected as unconstitutional and
politically not viable -- was to ensure that the GoA would
be able to continue to detain individuals considered
dangerous, but who might not clearly be successfully
prosecuted under Afghan criminal or national security law.
After over an hour of discussion, none of the Afghan
experts had any suggestions for how to address the problem
of security detainees.


4. (S) When polmiloff pressed the Afghan legal experts to
explain how the GoA would deal with detainees assessed to
be very dangerous, but possibly not prosecutable under
Afghan law, several of the experts replied that the USG
should retain custody of such detainees, particularly those
at GTMO, since bringing them to the ANDF, they fear, would
present major security risks for the ANDF, as well as for
the prosecutors, judges, and other GoA officials who would
be involved in handling their cases.

--------------
PROSECUTION ISSUES
--------------


5. (S) The Afghan legal experts expressed general agreement
that the detainees in five of the six "test cases" (reftel)
would be prosecutable under Afghan law. They assessed that
one -- the Hawala dealer -- would not be prosecutable, due
to an apparent lack of evidence. There appeared to be

general (though perhaps fragile) consensus that the "clock"
on pre-trial detention would start when a detainee is
transferred from U.S. custody to the GoA. This apparent
consensus was only reached after the MOJ representative,
Said Yousuf Halim, suggested that the clock would already
have started from the time the detainees were taken into
initial U.S. or Coalition custody -- Halim's comments
subsequently were rejected by the other Afghan experts, and
he did not further assert this theory. However, Halim and
some of the other Afghan legal experts said that it is
possible that an Afghan judge might credit a detainee's
time in U.S. custody as "time served" when handing down a
prison sentence, thus reducing the length of the convicted
individual's prison term.


6. (S) According to the experts, the GoA would have one
month after receiving custody in which to charge a detainee
in an Afghan court. After that, Afghan law provides for
two months to complete the first trial, two additional
months for an appeal, and up to five additional months for
a final appeal. Per the Afghan legal experts, the GoA can
detain someone for a total of ten months, including
pre-trial and during-trial detention. They explained that,
according to Afghan law, individuals wrongfully detained
(beyond the limits provided for in the law, or in
contravention of a court order) could demand 300 Afghanis
(approximately $6) per day of wrongful detention. Several
of the GoA legal experts participating in the meeting
asserted that detainees who are prosecuted under Afghan
law, but subsequently acquitted, would have grounds to
lodge a monetary claim against the USG for the number of
days spent in U.S. custody, at the rate of $6 per day.
(Comment: Such "grounds" would be inconsistent with the
apparent consensus view among the GoA legal experts that
the clock on pre-trial confinement starts upon transfer to
the ANDF. End Comment)


7. (S) All the Afghan legal experts emphasized the
importance to successful prosecutions of having adequate
evidence, which they described in general terms as signed
statements by the capturing officials, witness statements,
confessions (if given),pictures (if available),and other
physical evidence. The NDS legal advisor mentioned several
times that, in cases where the evidence is not clear,
Afghan officials can seek to develop additional evidence
via interviews and further investigation.

--------------
NEXT STEPS
--------------


8. (S) Malik Quraishi (Assistant to Deputy NSA Engineer
Ibrahim),who organized the February 12 meeting, planned to
reconvene the Afghan legal experts again on February 18,
for internal discussion (without USG representatives
present). Quraishi indicated that he realized from the
February 12 discussion that the Afghan legal experts still
have a number of key areas of disagreement that need to be
sorted out. (Comment: Assistant Attorney General Aloko
had been expected to attend the meeting, but reportedly was
pulled away by other urgent business at the last minute.
The AG's views on all these issues will be critical to the
GoA forming a coherent position. End Comment) Quraishi
explained that he intended to use the February 18 internal
meeting to organize the GoA's written statement outlining
how it would intend to handle transferred detainees under
Afghan law (reftel). He said that he aimed to have the
written response ready by February 19 or 20. (Note:
Polmiloff and CSTC-A representatives met with Quraishi on
February 14 to emphasize to him our concern regarding the
"security detainee" issue, and to impress upon him the need
for the GoA to address in detail its proposed
legal/procedural framework for handling transferred
detainees. End Note)

--------------
COMMENT
--------------


9. (S) The GoA is attempting to meet as closely as possible
our request for a written response within two weeks of
receiving the translated "test cases" (reftel). However,
from the discussion during the February 12 meeting, it is
clear that the GoA's legal experts are not yet ready to
provide cogent advice to the GoA leadership to underpin
such a response. Post will continue to press for a timely
and comprehensive response.


10. (S) The Afghan legal experts have not identified any
basis in Afghan law for the GoA to maintain security
detainees. We have continued to emphasize the importance
of this aspect of the commitments undertaken by the GoA in
the bilateral understanding on detainee transfers reached
in August 2005, but the GoA thus far has not succeeded in
establishing or identifying a legally and politically
viable means to deliver fully on that commitment. The
Afghan legal experts clearly are now focused on issues
surrounding detainee prosecutions. There are a number of
key questions that they will need to sort out and address
in formulating the GoA's written response. Notwithstanding
the apparent consensus that the "clock" on pre-trial
detention does not start until after the detainee is
transferred to GoA custody, we will need to have a very
clear answer on this from the Afghan legal perspective.
Moreover, we think it will be important to have an
understanding of the kinds of sentences likely to be handed
down for the crimes for which detainees are most eligible
to be prosecuted.


11. (S) Procedurally, we will need to have clarity on the
structure of the Afghan interagency review board that will
review the cases of transferred detainees, including who
will participate, who will chair, and who will retain and
manage the case files of the transferred detainees. We
also will need clarity as to whether the GoA would intend
to hold a transferred detainee at the ANDF during the
prosecution of that detainee (we presume yes, but this may
not be practical if the detainee is tried in a provincial
court outside of Kabul),and after sentencing (this is not
clear, but it seems likely the GoA would opt to transfer a
detainee sentenced under Afghan criminal or national
security law to a separate MOJ or NDS facility to serve out
his prison term). Another question that concerns not only
the GoA, but also ISAF partners is whether the ANDF at some
point will be available for holding detainees taken by ISAF
forces and rendered to the GoA under the terms of the
current ISAF ROE. This latter issue is certain to gain
more attention in the midst of intensified spring/summer
combat operations and the media coverage that will
accompany any U.S. transfers from BTIF.


12. (S) Post will continue to seek as much clarity as
possible regarding how the GoA intends to apply Afghan law
and procedures to any detainees transferred from the BTIF
or GTMO. Our attempts to obtain such clarity must
nevertheless be viewed against the backdrop of the still
evolving Afghan justice system. It is inevitable that the
same corruption and inefficiency that affects the Afghan
justice system generally will impact the handling of the
cases of detainees transferred to the GoA for prosecution.
Each transfer decision must therefore factor in this
inherent risk.

--------------
AMBASSADOR'S RECOMMENDATION
--------------


13. (S) If post receives the expected response from the GoA,
Ambassador recommends that we be authorized to provide the
GoA
with our reaction also in writing. Such a letter would state
that unless and until the GoA identifies a legal basis for
continued detention of detainees who pose a security threat,
and
guarantees their ability to detain them, we will not be able
to
transfer detainees. If they have concluded that no such
basis

exists, then they will need to pass a new law if they are
serious about getting the detainees back. Following delivery
of
the letter, we should probably brief the Parliament on the
state
of play as well.

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


14. (SBU)

GOA:

Abdul Malik Quraishi, Director of Policy and Oversight,
Office of the National Security Counsel (ONSC)
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

USG:
Embassy Deputy POLMIL Counselor
CSTC-A Staff Judge Advocate
CSTC-A Chief of Detainee Operations
Interpreter (CSTC-A Detainee Operations)
NEUMANN