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Canada Will Resume Transferring Detainees in Afghanistan to US Custody

Robert Chesney
Monday, December 12, 2011, 6:38 PM
Canadian forces may be largely on their way out of Afghanistan, but for a Kabul-based contingent focused on training Afghans, but the prospect that they might nonetheless in the position of capturing a prisoner raises the question of what they would then do with the person.  Some time back, citing human rights concerns, the Canadians ceased transferring such persons to US custody, opting instead to turn them over solely to the Afghan government for purposes of prosecution (or so I understand it; if readers believe that the understanding with transfers-to-Afghan-custody encompassed non-criminal

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Canadian forces may be largely on their way out of Afghanistan, but for a Kabul-based contingent focused on training Afghans, but the prospect that they might nonetheless in the position of capturing a prisoner raises the question of what they would then do with the person.  Some time back, citing human rights concerns, the Canadians ceased transferring such persons to US custody, opting instead to turn them over solely to the Afghan government for purposes of prosecution (or so I understand it; if readers believe that the understanding with transfers-to-Afghan-custody encompassed non-criminal detention as an end-state, don't hesitate to let me know).  That's a pretty good example of a move that looks good from a human rights perspective on paper, perhaps, but probably looks quite different in actual practice.  In any event, it appears that Canada and the US have inked a new agreement pursuant to which, going forward, any persons captured by the Canadians will be sent to US custody at the Detention Facility in Parwan.   That is a way-overdue development, I think, from both a security and a rights perspective, though it may come at a point where the resulting authority is merely notional.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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