No Comment — December 29, 2009, 4:38 pm

The Afghanistan Detention Dilemma

Max Boot prescribes a new imperial detentions policy in the Washington Post:

Successful counterinsurgency operations require locking up suspects based on a lower level of evidence — often based on classified intelligence that would not be admissible in a civilian court. It would be better if U.S. and allied forces undertake these kinds of security detentions while the Afghans build their own civilian legal capacity. That means the United States, Canada and other nations need to overcome their squeamishness about detentions. The Bagram facility has been expanded to handle more than 1,200 detainees. Further expansion is necessary. Even more important, the United States and other nations should opt out of the 96-hour restriction.

The U.S. took just the approach that Boot advocates in Iraq several years ago, and the result was a first-class disaster. More than 100,000 people were swept up in the system at some point–more than 90 percent of them with no basis whatsoever. After closing Abu Ghraib, the prison population at Camp Cropper and Camp Bucca peaked at around 26,000 in 2007. The detention facilities, which were not designed or staffed for these numbers, essentially turned into terrorist training and recruitment facilities. And, of course, there were the torture scandals at Abu Ghraib, Camp Cropper, and Camp Nama, resulting from policies that Boot seems to embrace: the use of torture and cruel, inhuman, and degrading treatment.

U.S. forces operating in Afghanistan do need the power to make security detentions. Not having liberal authority to detain would in fact lead to heavier reliance on lethal force, which challenges basic assumptions of counterinsurgency warfare. But the U.S. faces a number of significant challenges in this process.

First, counterinsurgency operations assume the existence of a legitimate authority that the military can aim to secure and empower. The objective is not to add Afghanistan to the American Empire, but to leave the country with a stable government in Kabul. Nothing is more essential to the legitimacy of a government than its administration of justice. It is true that Afghanistan has a weak rule of law environment–though not quite so true as many assume, since Afghanistan has a legal system that is extremely alien to most western observers, in which tribal orders and enforcement systems play a large role. If the U.S. were to build its own extensive detentions system and a U.S. court regime operating by U.S. rules, what does that say to the Afghans about the intentions of the United States? Nearly everyone will see it as a statement of contempt and disrespect for Afghan law and institutions. The key is therefore to have a detention system that properly respects the Afghan constitution, laws, and courts. In Iraq, this was done by creating a special Iraqi state security court (the Central Criminal Court of Iraq) that was properly resourced and staffed to handle cases coming out of the American detention regime. That model had its problems, but on balance it was a sensible approach that reconciled American security interests with the need to respect the local law and courts.

The second problem is torture. Boot recounts an incident in which a prisoner taken by Canadians was turned over to Afghan authorities and was tortured, concluding that the Canadians should turn their detainees over to the United States. But there is a comparable scandal pending in Britain today, over two prisoners the British surrendered to Americans in Iraq, who were taken to Afghanistan and tortured. American torture policy is the core of the dilemma. The key frustration faced by NATO allies in Afghanistan is their inability to coordinate detentions policy with the United States, due to the Bush Administration’s historic embrace of torture. Canada, the United Kingdom, Germany, and the Netherlands are among the countries that run detention operations in Afghanistan and have a standing policy of noncooperation with the United States, driven by concern over American torture practices. We often forget that the scandal over torture-homicides of prisoners actually started in Afghanistan, at Bagram Air Base, as was demonstrated in the Oscar-winning documentary Taxi to the Dark Side. Moreover, credible allegations of prisoner mistreatment at the JSOC black site at Bagram continue into recent months. NATO badly needs a consolidated, coordinated detentions policy—and American disrespect for the prohibition on torture has consistently stood in the way of such a policy. If Barack Obama wants to make good on the pledge he delivered at Oslo, and provide a firmer basis for NATO operations in Afghanistan, this is one way to do it. The brass in the Gates Pentagon are still set on their go-it-alone ways and don’t see the opportunity, or even desirability, of creating policy that would allow the United States to work with its allies. This is part of the legacy of the Rumsfeld years.

Third, the regime that Boot contemplates, like the one that the Pentagon is pushing towards, is illegal. Although international law gives armed forces the right to make security detentions, it doesn’t provide the authority for prolonged detention. Either that occurs under the authority of the Geneva Conventions or the authority must be worked out in an agreement with the host country. On this point, the United States had repeatedly sought authority from the Afghan government, and they have consistently refused to grant it. The Karzai Government’s refusal is well grounded: they say that it would violate their sovereignty for the United States to run its own long-term prison system in Afghanistan without access to Afghan courts and the protections afforded by Afghan laws. They’re right. An agreement could have been worked out with the Afghans, who have been willing to agree to detention facilities on terms that respect Afghan law and courts. The hold-up has been with the Gates Pentagon, whose attitude has been difficult to reconcile with its proclaimed counterinsurgency mission.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, a story by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Chances that a Republican man believes that “poor people have hard lives”:

1 in 4

A school in South Korea was planning to deploy a robot to protect students from unwanted seductions.

Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today