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Plan Ahead for the End of Afghan Detention Operations

Robert Chesney
Friday, January 6, 2012, 9:53 AM
At one point prior to 2009, [Update: In my haste this morning, I erred by referring to 100,000 detainees in Iraq at a single point in time, when instead I meant to refer to the volume of detainees we held there over time; the maximimum at any given point in time, I believe, was in the 20,000 range] the United States held more than 100,000 "security internees" in military custody in various facilities in Iraq.  Three years later, the war in Iraq is over (at least from a formal U.S.

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At one point prior to 2009, [Update: In my haste this morning, I erred by referring to 100,000 detainees in Iraq at a single point in time, when instead I meant to refer to the volume of detainees we held there over time; the maximimum at any given point in time, I believe, was in the 20,000 range] the United States held more than 100,000 "security internees" in military custody in various facilities in Iraq.  Three years later, the war in Iraq is over (at least from a formal U.S. perspective), every one of those facilities is in Iraqi hands, and every one of those detainees has been transferred to Iraqi custody or released.  The unwinding process was quite gradual, stretching out over three years, and it was facilitated by the fact that the Iraqi did at least have a somewhat functional criminal justice and prison apparatus through which at least some of the transferred persons might be processed.  Even so, the unwinding process in Iraq was no cakewalk.  As the Daqduq dispute illustrated, unwinding detention operations can be expected to put us to very difficult choices when it comes to relinquishing control over particularly dangerous or loathsome individuals. I have argued that we can expect to follow a similar path, sooner or later, in Afghanistan.  Plans for a transfer of control within the next couple of years have been in place for quite some time already, and between looming DOD budget cuts and declining public support for boots-on-the-ground operations in Afghanistan, it seems likely to me that this will occur even though some early benchmarks for ensuring Afghanistan is prepared to take over detention operations apparently have not been met. Now, against that backdrop, we have Karzai's pronouncement yesterday to the effect that he wants the U.S. to turn to his government our detention operations at "Bagram" by next month (which one U.S. embassy spokesperson apparently thinks was meant to encompass the Detention Facility in Parwan).  I won't hold my breath expecting this deadline to be met, or anything close to it.  But it a reminder that the unwinding of our Afghan detention ops is coming one day, whether we prepare for it or not.  Among other things, this means that it is imperative to review that detention population to identify persons whom for whatever reason we will be strongly disinclined to see walking free, and to determine whether there are plausible options, such as a criminal prosecution by an American civilian or military tribunal, that might provide a more certain long-term disposition.  Waiting to face such problems until the unwinding actually gets underway is not an ideal solution, as the Daqduq scenario attests.

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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