LEGAL ADVISER KOH PRESSES ATTORNEY GENERAL ON RULE

S E C R E T KABUL 002245

SIPDIS

DEPARTMENT FOR SRAP, SCA/A, INL, EUR/PRM, INR, OSD FOR
FLOURNOY, CENTCOM FOR CG CJTF-82, POLAD, JICENT KABUL FOR
COS USFOR-A

E.O. 12958: DECL: 07/30/2019
TAGS: PREL PGOV MARR AF
SUBJECT: LEGAL ADVISER KOH PRESSES ATTORNEY GENERAL ON RULE
OF LAW, JUVENILE DETENTIONS

Classified By: DEPUTY AMBASSADOR FRANCIS J. RICCIARDONE FOR REASONS 1.4
(B) AND (D)


1. (S) SUMMARY: Holding juveniles in an adult prison
facility, one-hundred-fifty pre-trial releases of
detainees that the U.S. has transferred to the GIRoA in the
last two-years, several notable cases of presidential pardons
for convicted narco-traffickers, and other examples of high
level GIRoA influence on court decisions make it difficult
for the USG to trust that President Karzai and Afghan
Attorney General Muhammad Ishaq Aloko are committed to the
rule of law process. Legal Adviser Harold Hongju Koh and
Deputy Ambassador Frances Ricciardone delivered this message
to Aloko on July 29th. They emphasized that this is a
particularly troubling trend at a time when U.S. troops are
being killed to help extend the reach of Afghan government
authority to some of the most dangerous parts of Afghanistan.
Koh told Aloko he planned to share these concerns with
Secretary Clinton and with President Obama in the coming
days. He stressed that the USG and American people, through
Congress, will be reluctant to sustain our support for
Afghanistan if the GIRoA fails to do its part to end such
practices and to strengthen the rule of law. END SUMMARY

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ALOKO,S RESPONSE TO CONCERNS
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2. (S) In a July 29 meeting with Attorney General Aloko,
Legal Adviser Harold Hongju Koh and Deputy Ambassador Francis
Ricciardone pressed Aloko on the release without trial of
detainees transferred from Bagram and Guantanomo to Afghan
custody, and convicted narco-traffickers. Koh had visited the
Afghan National Detention Facility (ANDF),Pol-i-Charki, the
Counternarcotics Justice Center, and Bagram before seeing
Aloko. Koh reported that he has observed juvenile detainees
as young as 13 years old being held in the ANDF, an adult
facility, and
urged their immediate transfer to a juvenile detention
center. On pretrial pardons, Koh also told Aloko that he
would have difficulty reporting to his superiors in the USG
that he had confidence in the Afghan government,s legal
system to maintain public order when that government was
releasing dangerous individuals into Afghan society without
trial. Aloko claimed that his office gives close attention to
juvenile cases, but admitted some might get lost in
bureaucratic processing. He agreed to order a review of the
handling of juvenile cases.


3. (S) When Ricciardone explained to Aloko about the crucial
link between rule of law and sovereignty, Aloko
challenged the Ambassador to define sovereignty, and declared
that decisions about releases were Afghan
problems,8 implying that the U.S. should stay out of them.
Ambassador Ricciardone pressed Aloko on why, contrary to
explicit agreement, the GIRoA allowed 150 pre-trial releases
from the ANDF, including the recent release
without trial of Abdullah Shahab, nephew of anti-American
Mujahideen leader Gulbuddin Hekmatyar. Shahab had admitted to
video-taping attacks against U.S. forces for use as Taliban
propaganda. Aloko responded that a familial relationship to
Hekmatyar had nothing to do with Shahab,s case and that his
camera activities were not illegal. Aloko argued that when
the U.S. transfers detainees to the GIRoA, the U.S.-provided
evidence against some detainees is insufficient for
prosecution, so he is sometimes left with no other choice
than to release the detainee rather than let their cases take
up time in already overburdened courts. (Comment: Each
transfer from Bagram to ANDF occurs though case-by-case
arrangement between U.S. Forces and prosecutors from the
AG,s office determine that sufficient evidence exists
against the individual detainees for the AG to bring them to
trial. End Comment)


4. (S) Aloko argued that he has the authority ,, to
recommend pre-trial releases, though he claimed to have no
involvement in the pre-trial releases or pardoning of
narco-traffickers we outlined to him. (Note: Aloko,s
claimed lack of involvement in the narcotics cases is not
credible.) Aloko,s responses contrasted with the more
candid admission of Karzai,s chief of staff Mohammed Umer
Daudzai to Ricciardone only hours before. Daudzai had told us
he was ashamed of Karzai for pardoning several
narco-traffickers. He added that there was no defense for
these moves, that he did not support the pardons, and that he
would work to prevent any future cases, such as two pending
cases that Ricciardone had brought to his (and Aloko,s)
attention.


5. (U) Septel will summarize our list of pending complaints

against the GIRoA,s handling of detainees - both pre-trial
releases of U.S. transfers to ANDF and presidential pardons
of narco-traffickers convicted in Afghanistan,s own courts.
EIKENBERRY