Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture

Dossiers（https://www.afghanistan-analysts.org/en/category/dossiers/）

Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture

Kate Clark（https://www.afghanistan-analysts.org/en/pubauthor/kate-clark/）

•

20 Dec 2014（https://www.afghanistan-analysts.org/en/2014/12/）

21 min

Home（https://www.afghanistan-analysts.org/en/） » Dossiers（https://www.afghanistan-analysts.org/en/category/dossiers/） » Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture

Share

One of the most controversial aspects of the 2001 intervention has ended: the United States’ detention on Afghan soil of men accused of involvement in the insurgency. At its peak, the US military detention facility on Bagram airbase held more than 3000 detainees. In the early years, there had also been a number of CIA ‘black sites.’ All Afghan detainees at Bagram were finally handed over to the Afghan government in March 2013 after a long and rancorous struggle and, over the last year, the US has transferred dozens of foreign nationals to their home or third countries. It finally closed the Bagram Detention Facility on 11 December 2014. The lack of a legal regime underpinning US detentions made them open to abuse and miscarriages of justice from the start. However, on the Afghan side, as well, security detentions have been controversial, with torture common practice. This dossier brings together all of AAN’s work on security detentions, both at US and government facilities. We have sorted coverage into four categories, see below, with each category’s analyses in chronological order, making it easier to grasp the full story and how it unfolded. Photo: Tolo News

1. Foreign detainees held by the US

In this section, we gather together dispatches looking at the abuses of detainees (both Afghan and foreign) and at how impunity for abuses, from these early days onwards, has remained a pattern in Afghanistan. In 2001 and 2002, the US established a number of detention facilities on Afghan soil, including what was to be the largest, at Bagram airbase. They detained both Afghans and foreign nationals, some captured in Afghanistan, others rendered by the CIA from other countries. The US administration decided those captured in the ‘war on terror’ were ‘unprivileged combatants’ and deemed they would not get Geneva Conventions protection, including Common Article 3 which bans torture and “humiliating and degrading treatment”. The lack of a legal framework for the detentions and the authorisation of coercive interrogation techniques opened the way up to abuses.

Foreign detainees were far less visible and, in the end, had fewer rights than detainees at Guantanamo Bay or the Afghan detainees held in Afghanistan. Many were kept in limbo – deemed by the US military not to be a threat, but still in custody. Unlike their Afghan counterparts, friends and family were far away and there was no Afghan interest in them, no visits by national or international observers – except the ICRC – and no option to be put on trial. Over the last year, the US was transferring detainees to home and third countries, spurred on by the need to clear the facility before the end of the year. Those transferred included men cleared by the US for release for four or five years.

Although the US refused to release the names of those it was holding, AAN scrutinised public and secret sourcing to bring lists of those detained and released.

2. Afghan detainees held by the US

In this section, we bring together reports detailing the long and bitter struggle by the Afghan government to wrench control of Afghan security detentions from the United States. President Karzai eventually managed to get a memorandum of understanding on the handover of Bagram and its Afghan inmates in March 2012, along with a sister agreement on handing over night raids in April 2012. It was to be a gradual transfer. The Afghan state initially, as AAN discovered, used internment, as one option, together with release or trial, for those transferred. This was subsequently blocked by Karzai. The US had wanted internment as it was always fearful the Afghan authorities would release those it deemed ‘dangerous.’

After the full handover was completed in March 2013, AAN discovered the US still had access to the detainees for interrogation. We found out that, before handing over those it had captured to the Afghan authorities, it was still interrogating them, including using sleep deprivation, at the so-called ‘Black Jail’ (Tor Jail), co-located at Bagram.

In February 2014 – to the futile outrage of the US -, the Afghan authorities released 65 men whom the US deemed dangerous; it had wanted them put on trial or investigated further. Kabul was adamant, however, these were “innocent” men. In the last months of his presidency, Karzai was still trying to eradicate all foreign involvement in detentions. The bilateral security agreement (BSA) which he refused to sign, but was signed by the new government of Ashraf Ghani on 30 September 2014, stipulated that “United States forces shall not… maintain or operate detention facilities in Afghanistan.”

3. Legal documents

Where possible, we have published the legal documents – including those not publicly released – that have underpinned the detentions regime at Bagram. We have also looked at the wider legal framework authorising (or not) detentions and use of force in Afghanistan

4. The NDS, torture and transfers

This section brings together AAN dispatches on the abuses suffered by security detainees at the hands of the Afghan state and at the trouble ISAF nations got into by transferring detainees to the Afghan intelligence agency, the NDS. All countries, apart from the US, chose to do this, rather than establish their own detention facilities. AAN reported on complaints about corruption or political pressure allowing Taleban detainees to be released and innocent people to be detained. We also reported on a number of in-depth reports from the UN and the Afghanistan Independent Human Rights Commission detailing the torture of security detainees. Locations and methods used (beating, electric shocks, suspension) were depressingly familiar to those who had investigated torture during the Taleban and earlier regimes.

Torture is illegal in Afghanistan. It is also illegal under the Convention Against Torture to hand over a detainee where there are “substantial grounds” for believing he or she would be tortured. Revelations about what was happening to those transferred by Canadian, British and other ISAF forces caused scandals at home, legal challenges and parliamentary enquiries. The UK was finally forced by its courts to cease transfers and had to establish its own detention facilities. Pressure on the NDS to reform came only after ISAF and especially the US military were shamed into action in 2011 by UN reporting which demonstrated just how systematic and widespread the torture was. Indications are, however, that torture by the Afghan state continues.

1. Foreign detainees held by the US

Ambiguous about Torture: Zero Dark Thirty, the Movie（https://www.afghanistan-analysts.org/ambiguous-about-torture-zero-dark-thirty-the-movie/）

Author: Kate Clark Date: 5 February 2013

Oscar-winning film director, Kathryn Bigelow’s new film Zero Dark Thirty tells the story of the search for and eventual killing of Osama Bin Laden. The film has proved controversial – praised by some for its cool realism, it has also been castigated for inaccuracies. Above all, though, it has been accused of justifying torture. AAN does not normally do film reviews, but this movie seems important. AAN senior analyst, Kate Clark watched Zero Dark Thirty during the same week UNAMA published a report accusing parts of the Afghan security services of systematically using torture against their fellow Afghans. She brings us her thoughts on what Bigelow has described coyly in interviews as the film’s depiction of ‘harsh tactics’. She also looks at the consequences of the US’ willingness to break the Geneva Conventions after 2001, consequences that are still being played out in Afghanistan.

The ‘Other Guantanamo’ (7): Foreigners in limbo at Bagram（https://www.afghanistan-analysts.org/the-other-guantanamo-7-foreigners-in-limbo-at-bagram/）

Author: Kate Clark Date: 3 October 2013

When wars end, military detainees have to be released. Yet at the end of 2014 when President Obama has said the war in Afghanistan will “come to an end”, it is still completely unclear what will happen to the more than 60 non-Afghans held by the United States military at Bagram Airbase. Most were detained in Afghanistan, but some were rendered to Bagram by the CIA during the first Bush presidency or, in a move deemed a breach of the Geneva Conventions by the British Supreme Court, transferred from Iraq after hostilities ended there. The foreign detainees at Bagram are far less visible and have fewer rights than those at Guantanamo Bay or the Afghan detainees who were transferred to Afghan control in March 2013. Many are already in limbo – deemed not to be a threat, but still in custody. Kate Clark, AAN senior analyst, looks at who is there and what might be their fate.

The ‘Other Guantanamo’ (8): A full list of foreign detainees at Bagram?（https://www.afghanistan-analysts.org/the-other-guantanamo-8-a-full-list-of-foreign-detainees-at-bagram/）

Author: Kate Clark Date: 28 August 2014

The United States military has always been highly secretive about the men it holds at the detention centre on Bagram airbase, only ever releasing one list of names – in February 2009, following a Freedom of Information request. AAN’s Kate Clark has been going through various sources of information and has put together what may be the first comprehensive list of detainees since then. 22 detainees can now be named, all of them foreigners (since the US handed over its last Afghan detainees in March 2013), 17 Pakistanis and five others, including men from Tunisia, Egypt and Russia. Some were rendered to Bagram, others were picked up fighting in Afghanistan or appear never to have been combatants. The pace of releases has quickened in recent months, most recently nine Pakistanis repatriated last week – something which the Afghan government has said it is unhappy about – and two Yemenis this week.

The ‘Other Guantanamo’ (9): Bagram prison to close with BSA, 13 foreign detainees left（https://www.afghanistan-analysts.org/bagram-to-close-according-to-bsa-13-foreign-detainees-left-what-to-do-with-the-rest/）

Author: Kate Clark Date: 2 October 2014

The US-Afghan Bilateral Security Agreement (BSA), now officially called the Security and Defence Cooperation Agreement, a copy of which AAN has obtained, says the US shall not “maintain or operate detention facilities in Afghanistan.” It appears then, that the US foreign detention facility at Bagram, often referred to as the ‘other Guantanamo’, will close by the end of the year. The US has been making huge efforts to release detainees and so shrink the Bagram ‘problem’, probably pushed by uncertainty over its legal authority to detain after 31 December when, in President Obama’s words, “America’s combat mission [in Afghanistan] will be over.” There are now just 13 detainees left there, down from about 70, a year ago. As Kate Clark reports, the rapid pace of releases also shows just how many long-term detainees should have been released years ago.

The ‘Other Guantanamo’ (10): Bagram closing: Lawyers worried about ‘ghost detainees’ (an update)（https://www.afghanistan-analysts.org/bagram-closing-lawyers-worried-about-ghost-detainees-an-update/）

Author: Kate Clark Date: 14 October 2014

Pakistani lawyers have told AAN they fear that when the United States closes its detention facility at Bagram at the end of the year, there may still be ‘ghost detainees’, men whose names, identities – and fate – remains unknown to the outside world. Since the earliest days of the war, the United States has been tight-lipped about those it detains at Bagram. That continuing secrecy means that, even as the US has repatriated dozens of detainees in the last year and prepares to end detentions in Afghanistan completely, suspicion still clouds its intentions of what it will do with those still left. AAN’s Kate Clark reports.

The ‘Other Guantanamo’ (11): More transfers, a court’s scrutiny and possible redress（https://www.afghanistan-analysts.org/the-other-guantanamo-11-more-transfers-a-courts-scrutiny-and-possible-redress/）

Author: Kate Clark Date: 28 November 2014

The United States military spokesman has confirmed to AAN that another detainee has left the detention facility on Bagram Airbase, a ‘German-Moroccan’, Muhammad Abdullawi. A Russian detainee, named by the US military as Irek Hamidullan, has also been flown out – to the US to appear in a federal court on terrorism charges; the first foreign combatant captured in Afghanistan to do so. Meanwhile, in London, the High Court has given permission for two claims, one for redress, the other for accountability against the British state. As AAN’s Kate Clark reports, it will mean the alleged wrong-doings of both US and UK troops – illegal detention, torture and rendition – will come under the legal and public scrutiny.

The ‘Other Guantanamo’ (12): Bagram closes, CIA torture revealed, US to be held to account?（https://www.afghanistan-analysts.org/the-other-guantanamo-11-bagram-closes-cia-torture-revealed-us-to-be-held-to-account/）

Author: Kate Clark 12 December 2014

As grotesque revelations in a Senate report on the CIA’s torture of ‘war on terror’ detainees are being mulled over, it has been announced that the last three remaining detainees in United States custody in Afghanistan have been transferred out of American hands. The Bagram detention facility is finally, after 13 years, closed. As AAN’s Kate Clark reports, US detention operations in Afghanistan may finally have concluded, but the repercussions of CIA torture and rendition have not yet ended. They include the possibility of the US being held to account at the International Criminal Court.

2. Afghan detainees held by the US

Stories people tell (2): Bagram prison; not a single good day（https://www.afghanistan-analysts.org/stories-people-tell-2-bagram-prison-not-a-single-good-day/）

Author: Martine van Bijlert Date: 9 March 2011

There are so many stories of people who get caught up in the nightly operations by American and Afghan forces. In the search for ‘kill & capture’ targets the net is cast wide: once a door is kicked in all males in a household are usually taken for interrogation. And it is then anyone’s guess when they will be released again. One story – out of many – of how an unlucky sleep-over resulted in years of detention, and what those years were like.

The ‘Other Bagram’ (1): A Memorandum for handover（https://www.afghanistan-analysts.org/the-bagram-memorandum-handing-over-the-other-guantanamo/）

Author: Kate Clark Date: 21 March 2012

President Karzai’s legal advisor, Nasrullah Stanekzai, has confirmed to AAN that there will be detention without trial of Afghans by Afghans when the Detention Facility at Parwan (DFIP), also referred to simply as ‘Bagram’, is handed over to Afghan government control, at the latest, on 8 September 2012. A memorandum of understanding (MoU) signed by the Afghan and US governments on 9 March created a tight timetable for the handover, with security detainees covered not by Afghan criminal law, but the Laws of Armed Conflict. AAN Senior Analyst, Kate Clark, looks at how this may open the door to new abuses of Afghan citizens.

Handing over Night Raids（https://www.afghanistan-analysts.org/handing-over-night-raids/）

Author: Kate Clark Date: 9 April 2012

Afghanistan and the United States have signed a Memorandum of Understanding (MoU) on ‘Special Operations’, ensuring that night raids will continue – with Afghans ordering and conducting them and US forces acting only in support. The agreement is a victory for President Karzai who has long insisted – up till now in vain – that night raids must be in Afghan hands or cease. This gain in sovereignty also puts him and the Afghan government much more at the forefront of the anti-Taleban struggle, politically and militarily. Karzai will have to take greater ownership of the war, both for what goes well and what goes badly. As for Afghan citizens, their rights should be better protected by the obligation that a judge issues a warrant before a home can be searched. At the same time, warns AAN senior analyst, Kate Clark, the MoU also envisages Afghan special forces arresting people who can then be held without trial.

The ‘Other Guantanamo’ (2): The Afghan State begins Internment（https://www.afghanistan-analysts.org/the-other-guantanamo-2-the-afghan-state-begins-internment/）

Author: Kate Clark Date: 23 May 2012

Sources involved in the handover of Bagram detention facility from the United States to Afghanistan have told AAN that the Afghan state was due to start ruling on the internment of its own citizens there on 22 May 2012. The use of the US system of detention without trial by the Afghan government is probably the most important consequence of the handover of Bagram. Yet it has been introduced with virtually no discussion, whether in parliament or the media. The Afghan government has appeared reluctant to discuss the issue: even as the new Afghan institutions were being established to detain Afghans without trial at Bagram, President Karzai’s spokesman told AAN they were against the practice. In this blog, Kate Clark details what is now happening at Bagram, reveals unpublished documentation and questions whether the Afghan state has actually gained sovereignty over its detained citizens and whether the US has really relinquished any control.

The ‘Other Guantanamo’ (3): Bagram and the Struggle for Sovereignty（https://www.afghanistan-analysts.org/the-other-guantanamo-bagram-and-the-struggle-for-sovereignty）

Author: Kate Clark Date: 10 September 2012

Bagram Detention Centre has been officially transferred to Afghan control today, with the fundamental question of sovereignty – who has the right to arrest and detain Afghans on Afghan soil – still not resolved. The US insists it still has the right; the government says this is illegal. On Saturday (8 September 2012), President Karzai, General Allen, the commander of ISAF and US forces and James Cunningham, the new US ambassador, met to try to thrash out their different interpretations of the Bagram Memorandum of Understanding (MoU) which was signed six months ago and forms the basis for the handover. According to a government official, it was a ‘bad meeting’ with ‘hard talk’ and, even as the handover ceremony went ahead, says AAN Senior Analyst Kate Clark, the ambiguities inherent in the MoU are unravelling for all to see.

The ‘Other Guantanamo’ (4): The Final Handover of Bagram in Sight?（https://www.afghanistan-analysts.org/the-other-guantanamo-4-the-final-handover-of-bagram-in-sight/）

Author: Kate Clark Date: 3 March 2013

The transfer of detainees held at Bagram airbase from US to Afghan hands is once again in full swing. Transfers had begun after the US and Afghan governments signed a Memorandum of Understanding (MoU) on transferring Bagram almost a year ago, but they were suspended by the US in late summer 2012, due to reluctance on the side of the Afghan government to hold its citizens without trial (‘administrative detention’), as stipulated in the MoU. The two sides are now negotiating the final few – but key – issues: squaring administrative detention with certain constitutional rights, deciding whether those picked up by Afghan Special Operations Forces should also be detained at Bagram and agreeing how long the US military can hold a detainee before handing him over. These issues are important, explains AAN’s Kate Clark, as they touch on Afghan sovereignty, the ability to fight the insurgency and the setting up of systems that will last well beyond the transition and the end of the ISAF mandate.

The ‘Other Guantanamo’ (5): A New MoU for Bagram and, Finally, a Handover?（https://www.afghanistan-analysts.org/the-other-guantanamo-5-a-new-mou-for-bagram-and-finally-a-handover/）

Author: Kate Clark Date: 24 March 2013

The Pentagon has announced and the Afghan presidential palace confirmed that the US military will hand over its detention facility at Bagram Airbase to the Afghan authorities tomorrow, 25 March 2013. The presidential spokesman, Aimal Faizi, told AAN the two governments have negotiated a new Memorandum of Understanding (MoU), which, unlike the first MoU on Bagram signed a year ago, will not authorise detention without trial. He also said it would not give the US a veto on the release of any detainee and would oblige it to hand over detainees within 96 hours of arrest. Faizi said all detainees will have been transferred ahead of tomorrow’s ceremony, including the 38 individuals considered particularly dangerous by the US which it has held onto because of fears that the Afghans would release them.