Sixty-five detainees, considered by the Pentagon to be dangerous terrorists “with blood on their hands,” were spirited away from a U.S.-established detention facility in Afghanistan by local military forces Thursday morning, following a decision from Afghan President Hamid Karzai to set them free.
Karzai has called into question the legitimacy of the imprisonment of these men, held at the Parwan Detention Facility just outside Bagram Air Field, one of the largest U.S. facilities in the country. The fledgling Afghan government received control of the prison in late 2013 following an agreement with the U.S.
The cagey president’s latest move has been met with red-faced outrage from U.S. and coalition officials, who believe he is undoing the work of their militaries in rounding up dangerous insurgents and turning them over to the Afghans to issue justice.
It remains yet unclear why Karzai, a supposed ally, would thumb his nose at the West like this.
“Nobody is disputing that some of these people may be innocent,” says Omar Samad, who from 2004 to 2011 served as Afghanistan’s ambassador to Canada and to France. “What most Afghans are concerned about is we have a precedence where individuals have been released without due process, and ended up back in the Taliban trenches killing Afghans and non-Afghans.”
“From what we know of this history of these people: Once a committed militant [or] jihadi, it’s very difficult to change that. We know of many individuals who have in the past few years been released and returned to their previous activities,” he adds.
The Pentagon has turned over to the Afghans what it says is definitive evidence and intelligence proving the guilt of each detainee. The International Security Assistance Force, or ISAF, released Wednesday details on four of them, all of whom it says were complicit in deadly rocket and IED attacks against coalition and Afghan troops. Each has been captured within the past year.
Karzai has called particular attention to other detainees he says have remained in permanent detention for years, with some enduring torture. Parwan has subsequently become a “Taliban-producing factory” due to these abuses, he claims.
So Karzai has turned to an extrajudicial review board, which has worked behind closed doors to ultimately decide the fate of these 88 detainees. Fewer than 20 of them are considered by both sides to be hardened, dangerous terrorists. The rest, along with others deemed ready for release, are now free to roam Afghanistan.
U.S. and coalition officials remain furious at the decision.
“The release of these dangerous individuals poses a threat to U.S., Coalition and Afghan National Security Forces, as well as the Afghan population,” ISAF said in a statement released Thursday morning.
“Insurgents in the group released today have killed Coalition and Afghan Forces,” it stated. “They have killed Afghan men, women and children. More than two dozen of the individuals released were linked to the production or emplacement of improvised explosive devices, the number one killer of Afghan civilians.”
Those freed Thursday will likely go back to fighting for local insurgent forces, ISAF believes. The absence of “legal consequences” will prompt these fighters to “return to the same criminal behavior that led to their original capture.”
Pentagon spokesman Army Col. Steve Warren has said the U.S. military will continue its pursuit of these men.
“It is the U.S. position that these [detainees] are threats to U.S. forces, and should they take up arms against us, we will take immediate action," he said Tuesday, according to Reuters.
The move comes at a time when U.S.-Afghan relations are already strained. Karzai has so far refused to sign the bilateral security agreement, or BSA, which awaits only his signature to determine the future size and scope of U.S. forces after 2014.
And it prompts the question: Why would Afghanistan do this?
Well, largely, because it can.
“The U.S. government is in a tough position here, because it handed over authority to the Afghan government to determine who should be released and who should be prosecuted,” says Daphne Eviatar, senior counsel at the New York-based nonprofit Human Rights First.
The original agreement transitioning control of Parwan from the U.S. to Afghanistan states clearly who has authority for determining the detainees fate. Section 2, Term 9 states:
“Afghanistan affirms that it is to consult with the United States before the release, including release prior to indictment, of the transferred detainees, and, if the United States provides its assessment that continued detention is necessary to prevent the detainee from engaging in or facilitating terrorist activity, Afghanistan is to consider favorably such assessment.”
Basically, the U.S. can advise and assist, but it cannot act unilaterally on Parwan prisoners.
“The U.S. may not trust the process,” Eviatar says, “and may have reason not to trust the process, given the various political influences that may be involved. But after detaining these men indefinitely for years under dubious legal authority, it doesn’t have any legal authority to insist they be prosecuted or held in continued detention.”
The remaining rationale behind the decision to release these detainees is rooted in politics. Under Afghan law, Karzai must turn over power to his successor following the completion of a free and fair Afghan election this fall. Many members in Congress believe America’s problems can be solved by waiting out Karzai’s term.
However, Afghan watchers believed he engaged in widespread ballot-rigging to be re-elected in 2009. And U.S. officials question the outcome even if the process is free and fair. Marine Corps Commandant Gen. James Amos pointed Tuesday to the possibility of a runoff election, and questioned when that could be scheduled and how it be monitored.
Samad, the former ambassador, says these latest acts of stubbornness show Karzai’s desire to secure his legacy, and demonstrate his sovereign ability to stand up to the Americans. They also support recent claims he is in negotiations with insurgent forces.
“There are rumors he is playing ‘footsie’ with the Taliban behind everybody’s back, and this may be a way for him to gain some sympathy from the people who have been accused of so much mayhem in Afghanistan,” says Samad, now at the New America Foundation. “It’s definitely not just one political reason or motivation. It’s definitely a mix.”
He points to the important but flawed process of the U.S. increasingly turning authority over to the Afghans. It’s an important step in the process if President Barack Obama has any hope of fulfilling his promise of removing combat troops by the end of this year. But many facets of the Afghan government, largely its judicial system, have yet to demonstrate the maturity and experience to act on its own.