Identifier
Created
Classification
Origin
07KABUL956
2007-03-25 03:47:00
SECRET
Embassy Kabul
Cable title:  

DETAINEE LEGAL FRAMEWORK: REVIEW BOARD MEETS

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

DE RUEHBUL #0956/01 0840347
ZNY SSSSS ZZH
O 250347Z MAR 07
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7016
INFO RUEKJCS/SECDEF WASHINGTON DC PRIORITY
RUEAIIA/CIA WASHINGTON DC PRIORITY
RHEFDIA/DIA WASHINGTON DC PRIORITY
RUEKJCS/JOINT STAFF WASHINGTON DC PRIORITY
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY
RHMFISS/HQ USCENTCOM MACDILL AFB FL PRIORITY
RHMFISS/CDR USEUCOM VAIHINGEN GE PRIORITY
S E C R E T KABUL 000956 

SIPDIS

SIPDIS

STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (SINGRAM),S/WCI
(MSTAMILLO),L/PM (EPELOFSKY)
NSC FOR AHARRIMAN
OSD FOR ARICCI
CENTCOM FOR CG CJTF-82, POLAD, CSTC-A

E.O. 12958: DECL: 03/18/2017
TAGS: KAWC MARR PTER PGOV PINS PREL AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: REVIEW BOARD MEETS
AHEAD OF INITIAL TRANSFER

REF: A. SECSTATE 35388

B. KABUL 0806

C. KABUL 652

D. KABUL 369

E. KABUL 05850

F. KABUL 05615

G. KABUL 05161

Classified By: Acting Deputy Chief of Mission Carol A. Rodley for reaso
ns 1.4 (b) & (d)

S E C R E T KABUL 000956

SIPDIS

SIPDIS

STATE FOR P, SCA/FO (DAS GASTRIGHT),SCA/A (SINGRAM),S/WCI
(MSTAMILLO),L/PM (EPELOFSKY)
NSC FOR AHARRIMAN
OSD FOR ARICCI
CENTCOM FOR CG CJTF-82, POLAD, CSTC-A

E.O. 12958: DECL: 03/18/2017
TAGS: KAWC MARR PTER PGOV PINS PREL AF
SUBJECT: DETAINEE LEGAL FRAMEWORK: REVIEW BOARD MEETS
AHEAD OF INITIAL TRANSFER

REF: A. SECSTATE 35388

B. KABUL 0806

C. KABUL 652

D. KABUL 369

E. KABUL 05850

F. KABUL 05615

G. KABUL 05161

Classified By: Acting Deputy Chief of Mission Carol A. Rodley for reaso
ns 1.4 (b) & (d)


1. (S) Summary: The GOA has been informed that the first
transfer of 13 detainees to the Afghan National Detention
Facility (ANDF) is scheduled for March 25, when the facility
will be formally opened; the actual transfer will occur on
April 2. Post passed evidentiary files for the first
transferees to the Office of the National Security Council
(ONSC) on March 11. Regarding the legal framework, GOA
Detainee Review Board (DRB) representatives have now been
designated, and the DRB convened on March 19. Ministries'
designation of DRB members and a memorandum on test cases
(reftel D) now received from the National Directorate of
Security (NDS) leave one piece outstanding in the GOA
response on a detainee legal framework: The promised
certification from Deputy National Security Adviser Engineer
Ibrahim Speenzada that the members' designation, test case
memorandum, and Part One response (reftel C) constitute a
collective GOA response. The GOA has resisted stating in
writing that indefinite administrative detention is a legal
option and has instead asserted that all detainee cases can
be prosecuted. Two significant capacity issues may impede
smooth future transfers: 1) Lack of USG capacity to
translate evidence into Dari far enough in advance of a
detainee's physical transfer to allow the GOA adequate time
to collect additional evidence and prosecute cases within
legal time constraints, and 2) The untested capacity of the
GOA court systems to handle the volume of transferred

detainee cases. Post strongly recommends that case files from
both Guantanamo Bay and the Bagram Theater Internment
Facility for any detainees considered for transfer be
translated and relayed to GOA as soon as possible. (End
Summary)

--------------
Preparations for ANDF March 25 Opening
--------------


2. (S) Post informed the GOA on March 15 that the first
transfer of 13 detainees would take place on March 25, and
the Afghan National Detention Facility (ANDF) formal opening
is now planned for that day. CJTF-82 has advised the actual
transfer will occur on April 2; this specific date will not
be shared with GOA due to operations security concerns. Ahead
of the opening, CSTC-A has confirmed that the ANDF deputy
commander about whom there were Leahy concerns (reftel E) was
informed by GEN Bishmullah Khan that he would be removed from
his position. Press guidance on the opening has been drafted
by PAS, coordinated with military public affairs counterparts
here, and cleared by Washington. Post will provide the final
version to Afghan National Communication Coordination Center
officials. Neither USG components here nor the GOA plan to
announce the ANDF opening or that the first transfer will
occur. Also in preparation for the first transfer, post
passed case files for the first 13 detainees to the Office of
the National Security Council (ONSC) on March 11. These files
contain hard copies of English documents and Dari
translations produced by CSTC-A and a CD containing documents
in both languages.


-------------- ---
Legal Framework -- On Land, At Sea, In The Sky
-------------- ---


3. (S) On March 15, National Security Directorate (NDS)
Senior Legal Adviser Rasoli met with ONSC Situation Room
Director Mohammmad Zia Salehi and polmiloff, received the 13
files of the initial transferees from Bagram Theater
Internment Facility (BTIF),and delivered the requested

memorandum on the six test cases (reftels B, D; see official
ONSC translation in paragraph 14 below). Rasoli's memorandum
states that all cases, including Test Case C, are
prosecutable. Rasoli told polmiloff that a case like "C"
could merit a sentence of 10 years for illegal financial
activities, that cases will be assessed for both aggravating
and mitigating factors, and that there are no legal "gaps"
that would affect the GOA's ability to prosecute detainee
cases.


4. (S) After Salehi was called away, polmiloff had an
extended conversation with Rasoli with only an embassy
interpreter present. Rasoli observed that those in the GOA
who did not see a basis for prosecuting the test cases did
not know the penal law thoroughly. He pointed in particular
to the penal law's sections on organized crime and crimes
against internal security, emphasizing there is a legal basis
for prosecuting any crime that occurs "on land, at sea, or in
the sky." When questioned about use of NDS law, Rasoli
confirmed that the 1987 Law on Crimes Against Internal and
External Security is used in conjunction with the Discovery,
Investigation and Oversight law of the Attorney General's
office cited in reftel C and that there is no "secret law"
specifying any additional national security crimes or basis
for indefinite detention. The 1987 law is supplemented only
by an administrative annex that addresses NDS internal
functions. Post has previously relayed the 1987 law to the
Department but has not been able to obtain a copy of this
annex.


5. (S) Rasoli emphasized the importance of collecting
sufficient evidence, noting that courts can reject cases on
the basis of inadequate evidence. He said that because of the
difficulty of collecting evidence in remote areas, he and
others are pressing for the Criminal Code to be revised to
reinstate a two-year detention period in place of the "seven
months" he said is now mandated. (Note: The 2004 Interim
Criminal Code specifies 30 days of pretrial detention, two
months of detention during trial, and an additional total of
seven months during two appeals phases. End Note) When
polmiloff mentioned that ONSC had asked for case files to be
transferred 30 days ahead of a detainee's physical transfer,
Rasoli stated it will be important to receive the evidentiary
files as far ahead as possible of physical transfer to ensure
there is adequate time to collect additional evidence and
thus successfully prosecute detainees. Rasoli also suggested
that he would benefit from a mentoring arrangement as the NDS
reviews case files; post endorses the need for this direct
assistance.


6. (S) Post has requested a meeting with Deputy National
Security Adviser Engineer Ibrahim Speenzada the week of March
25 at which we will press for the written certification
promised (reftel B),which will state that the Review Board
members' designation, test case memorandum, and Part One
response (reftel C) together constitute a collective GOA
response on the detainee legal framework. We will also
request an assurance on indefinite detention of any detainees
judged nonprosecutable and will raise the evidentiary
security issues outlined in paragraph 10.


7. (S) With regard to pressing President Karzai to accept the
legal framework--i.e., the Afghan Presidential Directive
(APD)--Afghan officials previously confirmed that President
Karzai will not sign it (reftels F, G). Moreover, while
President Karzai can sign a decree, it would then be subject
to parliamentary review. Neither GOA nor post believes that a
parliamentary review would lead to a favorable result. The
implications of the new Amnesty bill have also not yet been
taken into consideration. All 238 BTIF cases on the DOD Order
of Merit have been judged prosecutable by GOA teams. We
strongly recommend that GOA teams assess the cases of Afghan
detainees at GTMO as soon as possible to determine if all are
prosecutable. With regard to reftel A instructions on
pressing the GOA regarding indefinite detention, post
believes that in addition to paragraph six action, we should
first see if there are indeed cases the GOA cannot or will
not prosecute.


-------------- -
GOA Detainee Review Board Convenes
-------------- -


8. (S) ONSC convened the first Detainee Review Board (DRB) on
March 19, within three days of receiving the final response
from the Supreme Court, Attorney General's Office (AG),NDS,
and Ministries of Interior (MOI),Defense (MOD),and Justice
(MOJ). DRB members are listed in paragraph 11. While the MOJ
had confirmed their representative would attend, he did not.
ONSC's Salehi convened the DRB, with OSNC Communications
Center Director Lutfullah Mashal also present. Acting
polmilcouns, polmiloff, and CSTC-A's Chief of Detainee
Operations and Staff Judge Advocate also attended.


9. (S) Spirited DRB discussion resulted in agreement on the
following: Post will pass evidentiary files received from
CSTC-A to ONSC, ONSC will pass all files to NDS for initial
review, and NDS in coordination with ONSC will pass files to
appropriate ministries for additional collection of evidence
if warranted. The DRB thought most cases would likely be
prosecuted in the national security court system. Therefore,
only those files of cases destined for MOJ courts will be
shared with all DRB representatives. Attendees agreed that
polmiloff should meet in the near future with ONSC and NDS
representatives to assess disposition of the first 13 cases,
that the DRB should reconvene shortly afterwards, and that
post should provide the DRB with a draft procedure outlining
the relay of evidentiary material. AG-MOI-MOD-NDS teams have
left notes in Dari on over 200 cases at the BTIF; CSTC-A
agreed to relay all these notes to post for our onward relay
to the ONSC.


10. (S) ONSC's Salehi emphasized the need for tight control
of evidentiary files, citing a recent scam by someone who,
having obtained the name of a detainee, extorted money from
the detainee's family, who were found waiting near the US
Embassy for the detainee's release. Following the DRB, Legal
Adviser Rasoli told polmiloff privately that he had been
approached on March 16 by someone claiming to be a defense
attorney for one of the detainees whose files Rasoli had
received from ONSC on March 15. He suspected a leak within
the Ministry of Interior and welcomed polmiloff's suggestion
that post raise with Engineer Ibrahim the need for physical
protection of evidentiary files.



11. (C) Detainee Review Board (names, titles as received from
ONSC):
Mr. Saida Jan Shenwari, Director for Appeals, Attorney
General's Office
Mr. Abdul Rasheed Rashid, Member of Supreme Court
General Mohammad Yousif, Deputy Director of Legal Affairs, MOD
Abdul Qayuom Nezami, Legal Affairs Department, MOD
General Jamaluddin, Deputy Director of Intelligence, MOI
Mr. Zuhore-u-Rasoul, Legal Adviser to NDS
Mr. Abdulsalim Asmat, General Director of Prisons, MOJ

-------------- --------------
Capacity Issues -- USG Translation, GOA Court System
-------------- --------------


12. (S) The GOA has requested that evidentiary files be
passed 30 days ahead of physical transfer (reftel B); post
suggested DRB participants advise us if more time is needed
to gather evidence. Post believes it is imperative to
transfer files for all planned transferees as soon as
possible to ensure that the GOA has adequate time to research
cases, collect additional evidence, and then prosecute the
detainee within the time constraints mandated by the Interim
Criminal Code. We strongly recommend that all files of Afghan
detainees at Guantanamo Bay who are under consideration for
transfer as well as files for all 230-plus detainees on the
BTIF Order of Merit list be translated and relayed
immediately to post for onward relay to GOA. Receipt of the
Guantanamo files will also facilitate preparation for a site
visit by GOA investigators COL Khadghul Hamdard (MOI) and
Colonel Abdul Jalil Muldafi (NDS).

Based on the time needed to produce the initial transfer's 13
case file translations, CSTC-A estimates that a dedicated
unit of five translators could translate 20 case files per
month; CSTC-A is staffing a request to establish such a unit.


13. (S) The capacity of the GOA national security and civil
courts to absorb the volume of transferred detainee cases is
also an unknown variable at this point. When requested to
provide an estimate as to how many cases they believed their
system could accept in any given time period, the DRB
expressed the opinion that they were unable to make such an
estimate at this time. They stated that they would be better
suited to answer after evaluating their experience with the
initial 13 cases. Post will monitor the time needed to indict
and prosecute the initial 13 transferees.

-------------- ---
Text of GOA Memorandum -- Response on Test Cases
-------------- ---


14. (S/REL GOA) (STAMP) 28-11-(illegible) 0773
Islamic Republic of Afghanistan
National Directorate of Security
Office of the Legal Advisor

To: The Office of National Security Council
Islamic Republic of Afghanistan

In reference to your letter No. 3183 dated 14/11/1385 (March
5, 2007),we have the honor to state that:

While considering cases (A, B, C, D, E and F),it is worth
mentioning that in regard to the transfer and any other
measures needed for the next legal and judicial
investigations of detained Afghan prisoners in Guantanamo and
Bagram prisons, we have come to a conclusion that the
Abovementioned cases are clear and documented in accordance
with the penal code of Afghanistan and are prosecutable.

Best regards
Senior Legal Advisor

Best regards,
(Signed) Sayed Zahor Rasoli
Senior Legal Adviser
(end of text)
NEUMANN