Afghanistan's Proposed Detention Regime

Writing at Foreign Policy, Chris Rogers of Open Society Foundations criticizes Afghanistan's plans for a non-criminal detention system (something occurring as part of the process of the U.S. turnover of the DFIP to Afghan control).  The critique sounds in both absolute terms and with respect to the particulars of this proposal. In absolute terms, Rogers raises an important point about the prospect that such a statutory authority, once enacted, might still lie about, capable of abuse, long after the current conflict is over (or perhaps even during the conflict itself). That is a valid concern, and one that should be addressed when it comes to the particulars of the law in question (more on that below).  Separately, however, Rogers questions whether there is any need for this law in the first place, beyond U.S. insistence upon it as a condition of the DFIP transfer.  Toward that end, Rogers argues as follows:

As part of the agreement to transfer control of Bagram, the Afghan government is creating the authority to hold individuals without charge or trial for an indefinite period of time on security grounds-a power it has never before said it needed. While such "administrative detention" regimes are permissible under the laws of war, this new detention power is being established in order to hand over a U.S. detention facility, not because changes in the conflict have convinced Afghan officials that it is necessary.

It may well be that Afghan officials truly don't think they need this authority going forward, and are only doing this because we have insisted upon it.  But I do not think we can infer that from the fact that they have not previously sought to enact such a law.  That tells us nothing, in my view.  The United States has provided non-criminal detention throughout the past decade, sparing the Afghans from considering whether they themselves have to operate such a system in connection with the ongoing armed conflict.  More specifically, the existence of the U.S.-operated detention system has meant that Afghanistan has not previously had to confront the prospect of handling an armed conflict while relying exclusively on their nascent criminal justice system.  Now that the US is getting out of that business, the situation has changed dramatically. Rogers also critiques the particulars of the Afghan detention proposal at issue, noting that Open Society Foundations has received a draft copy.  There is no link to the draft, unfortunately, but according to Rogers its language is sparse on details, which does indeed sound problematic.  Rogers recommends incorporation of a sunset provision to ensure the law does not outlast the current circumstances of armed conflict, which might well be a very good idea.  Less appealingly, Rogers also argues that the scope of the law should be confined to

individuals currently held by the United States at Bagram prison. There is no clear reason why the handover of Bagram detainees requires the creation of a nation-wide administrative detention regime. More generally, the scope of who can be detained must be clearly defined and limited.

I agree that the substantive scope of the statute should be defined carefully, but not that it should be limited to the current population.  Why would we think that the current population exhausts the set of persons who need to be preventively detained while the conflict lasts but are not likely candidates for prosecution under the higher evidentiary and procedural standards of the criminal justicy system?  What makes more sense, in my view, is to focus on spelling out the procedural and evidentiary rules that will govern the administration of Afghanistan's new system--i.e., its equivalent to the Detainee Review Board process the United States has employed at the DFIP in recent years.  On that last point, Rogers argues:

Third, detainees must have right to counsel as well as access to the evidence used against them in order to have a meaningful opportunity to challenge their detention-a fundamental right in international law.

I think this is a misstatement of the law, or at least an incomplete statement.  Were this an international armed conflict, it would be quite clear that there is no right to counsel or to full access to the government's evidence when it comes to challenging the government's detention decision.  Of course, this is not an IAC, but instead a non-international armed conflict.  Some argue that international human rights law accordingly applies with full force, including the panoply of rights associated with the prohibition againt arbitrary detention (note that familiar U.S. arguments about IHRL having no extraterritorial application drop out once the detaining power becomes Afghanistan, which is acting on its own soil).  Others argue, however, that IHRL is displaced in such a case, via lex specialis, by the law of armed conflict in the NIAC setting (and then we can have debate about the best understanding of what the law of armed conflict permits or requires vis-a-vis procedures for detention in a NIAC).  Still others say IHRL and the law of armed conflict must be harmonized in some fashion in this setting.   The point being: it is not so obvious that there is an international law right to counsel and to complete evidentiary access in circumstances such as this (though the argument that there are such norms is certainly a serious one).  In any event, I wonder if the Afghans might choose to circumvent this issue by including a derogation from the ICCPR's detention rules.