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Afghan Research Society

The US Supreme Court’s Latest Decision on Detainees:
Its Implication for Afghanistan
June 12th, 2008

On June 12th, 2008 the US Supreme Court in a majority ruling handed down a
decision which provided the right of habeas corpus for the detainees in the
Guantanamo Bay prison, the right to have their cases heard in a civilian court. The
detainees that numbered 770 at one point and now there are still 270 of them in
Guantanamo Bay have been held since the invasion of Afghanistan on October 7, 2001
without formal charges or the benefit of hearings, making their detentions indefinite.
Several times the Bush Administration has attempted to have some of the detainees
tried in military courts. The controversy surrounding this outpost prison at the US Navel
Base in Cuba has been going on for some time, many calling for its closing including
now the two candidates for President, Senators John McCain and Barack Obama the
Republican and Democratic presumptive nominees. Senator Obama supports the
majority decision of the Supreme Court whereas Senator McCain like President Bush
opposes the Court’s decision.
While the scandals including evidence of torture and even killing of two prisoners at
Bagram and wide spread torture at Abu Ghraib prison camps attracted much world
attention on the issue of the treatment of the prisoners in the so-called war on terror,
the legal arguments for habeas corpus have been about the detention of prisoners in
Guantanamo Bay. The majority opinion from the Supreme Court was given by Justice
Anthony Kennedy who was quoted by the Associated Press as having said that “the
laws and Constitution are designed to survive, and remain in force, in extraordinary
times”. The Bush Administration and some lawyers who have gained notoriety since
they have been arguing that the detainees do not have the protection of the US laws
and the Geneva Convention on the prisoners of war in this case. After much outcry by
the world public and human rights organizations the Bush Administration conceded to
the validity of the Geneva Convention with limited application, but, still argued that the
detainees are “enemy combatants” and they must be tried in a military court.
The question now is how will this (hopefully) final round of judicial dispute between the
Supreme Court and the Bush Administration on the treatment of the detainees find its
way through the corridors of justice. How will this ruling apply and who will see to it that
it is applied in all cases especially where US lawyers are not present? Undoubtedly
there are many lawyers in the US who are happy to get involved in defending the rights
of the detainees in Guantanamo Bay because it has created much world public
exposure. But, what about the detainees at Bagram and the 20 secret prisons where
Afghans and possibly other nationalities are held by the CIA and the Pentagon inside
Afghanistan reported by the New York Times two years ago?
On June 12th, 2008 BBC radio had a commentary by a lawyer on the US Supreme
Court’s decision. He stated that in his opinion this decision is one of the most
important decisions among six or seven decisions the Supreme Court has ever
handed down. According to him (and it would be good to know his name which I did
not make a note since I was listening to the broadcast while driving), this decision
meant that ‘ US laws will travel along to all places that the US is holding prisoners’. If
so, then this also meant  prisoners held in US run prisons any where in the world have
the right to have their cases against detention heard in civilian courts. Since,
Guantanamo Bay is an area outside the US territory then logically by extension the
decision also should apply to prisoners held by the US in Afghanistan and Iraq; that is
some thing that Afghan and Iraqi lawyers should be able to establish with the help of
their American counterparts.
Clearly these developments and their further applications are very important because
much abuse of the rights of Afghans and Iraqis have taken place under occupation
over the past several years and such abuse continues to take place at the present. On
June 18, 2008 the Canadian Press on line reported that “Gunatanamo detainees were
tortured, medical exams show”, quoting  Dr. Allen Keller, Director of the Bellevue/New
York University Program for Survivors of Torture, who stated to the Associated Press
that, "We found clear physical and psychological evidence of torture and abuse, often
causing lasting suffering”, after having examined 11  Guantanamo detainees.
The Supreme Court’s latest decision found President Bush, who was in Rome at the
time, declaring that “we will abide by the court’s decision”, even though he disagrees
with it, which should mean the end of a long running dispute between the
Administration and the Supreme Court on the rights of the detainees. The question
one need to ask, is the Karzai regime able to handle this issue properly and stand up
for the rights of the prisoners held by the US in Afghanistan? When some of the
detainees were transferred from Guanatanamo Bay to Kabul early this year, hearings
were held by the Karzai regime for each detainee for half hour to one hour and then
each one was sentenced to prison ranging between 3 to 20 years, this after having
spent five to six years in Guantanamo Bay prison. Apparently this was done under
pressure from foreign sources in Kabul, reported Democracy Now (Free Speech
Network), during first week in May, 2008.
It seems that these individual detainees could not be tried even in a US military court
since apparently the US government had no evidence against them, only there was a
presumption of guilt in their cases being designated as “enemy combatant”, so they
were shipped to where laws are not applied to protect the rights of individuals. Further,
it has been clear that there is a breakdown of law and order in Afghanistan during the
last few years; some judges are reported to demand pay offs for their decisions. The
interesting aspect of this is that the US and NATO countries as well as the other
members of the international community along with the various branches of the UN
with overwhelming presence in Afghanistan never experienced before have turned a
blind eye to the judicial and social crisis developing under their watch and as a result
of the policies of occupation. These foreign entities have tried to substitute Western
secular laws and legal systems for the Islamic principles of jurisprudence under
Sharia without much success.  
These sets of conditions present a huge challenge for the legal system in Afghanistan,
especially under the concerted attempts made by the US and NATO countries in trying
to establish the application of secular laws in Afghanistan through extensive training
and retraining of Afghan lawyers. Italy was given this responsibility. First 750 Afghan
lawyers were sent before 2004 and then another 450 lawyers went to Italy and 22 to
the US essentially for retraining them in secular laws after the results of the first
attempts turned out unsuccessful. These attempts were part of remaking the legal
system in Afghanistan after the invasion of October, 2001. How much of this had to do
with a case in Sheberghan in the north east of Afghanistan, where the rule of Taliban
never reached, involving the crime of adultery by a married woman named Amina, who
was stoned to death following the verdicts from three court hearings in 2004 it is not
clear. However, what was clear at the time, was the fact that the proponents of secular
laws in Afghanistan were devastated by the case in Sheberghan. A similar case in
Kandahar during the Taliban rule had raised much outcry in the West. The case in
Sheberghan was not widely reported by the Western media, some Afghan news
sources covered the story.
During the first week in June, 2008 the Pentagon reported to the UN Committee on the
Rights of the Child that it has 10 Afghan children and 500 Iraqi children under
detention in each country according to AP news services. Further, the Pentagon
announced plans to build a new “permanent” prison at Bagram on a 40 acre site for
1,100 prisoners. Only the US news services have reported these news, not the Afghan
news networks, which implies that such important news is kept from the Afghan
public. However, the news on this new prison has spread on the Internet and many are
calling it  “Guantanamo II”, which the Pentagon is trying to reject as such. It may be that
there will be “Bagram I” and “Bagram II” as some have suggested. The Pentagon
claims there are about 640 prisoners in Bagram, whereas some Afghans claim that
there are many more prisoners, perhaps several thousand. Why no one has been
allowed to verify the number of prisoners, their age distribution and conditions
including how long they have been held without charges no one has explained or
pursued the question.
It may also be as many would contend that the Karzai regime has no say in these
matters even in Kabul, occupation forces do as they please. The Parliament has
stated that NATO should move out of Kabul, some two years ago. No such move has
been made. Several times members of Parliament have complained on Ariana and
RTA ( government run) satellite televisions from Kabul about this issue. Under these
conditions what should the Afghan public in general and the Afghan Human Rights
Commission (AHRC) in particular expect to happen in Afghanistan? Can the AHRC
have any powers to argue on behalf of the Afghan prisoners held by the US and NATO
forces in Afghanistan? The AHRC was orchestrated as an institution to protect the
rights of Afghans against abuse especially after the outcry of mistreatment of women
during the Taliban rule. Yet, abuses against women continue with many reports about
several hundred Afghan women burning themselves to death in Herat for a verity of
abuses, some thing unheard of before. We have not heard of any reports by the AHRC
on this issue. Some would argue that the AHRC was also organized to protect the
people against abuses by members of the Northern Alliance which it has failed badly
to do so, the latest example being aired accusing Rashid Dostum the notorious
warlord attacking his political rival Akbar Bouy in Kabul and killing one of his aids and
refusing to appear in court. The story was carried for several days during May 2008 by
two Afghan run satellite TV networks ( Payam-e-Afghan and Ariana-Afghanistan) from
southern California widely seen by the Afghan Diaspora around the world.
The recent history of Afghanistan is mired with lack of legal actions against abusers
and more important against criminals and those who have caused crimes against
humanity. Ironically it was abuses by members of the Northern Alliance, the same
bunch of warlords that fought each other for control of Kabul during 1992-1996 causing
massive killings ( over 60,000 deaths ) and devastations in the city against the civilian
population, that were also responsible for having landed many young Afghan boys in
Guantanamo Bay prison. Most people remember the case of the 9 year old boy
kidnapped by members of Northern Alliance in Kunduz and sold to the US Special
Forces for $5,000 in 2002. This boy and two other boys the oldest of whom was 15
years old were released after two years of imprisonment in February 2004, their
stories were carried live by BBC radio on February 4, 2004. There were many other
detainees who were also ‘sold’ by members of the Northern Alliance after the US
invasion of Afghanistan. Perhaps as many as 80 such cases existed at one point. The
bungled justice system has ignored their cases and they may have fallen through the
cracks where exactly it is not clear, perhaps in secret prisons where no outside help
has reached them so far.
       The challenge in Afghanistan is to apply Afghan laws to protect Afghan prisoners
held by the US and NATO countries in Afghanistan. So far that has failed and the Karzai
regime does not even know how many prisoners are held, where and why. The
Pentagon and the CIA are not telling the human rights organizations how many
prisoners are held and where they are held. There are many complaints by the Afghan
people about disappearing relatives, their where about is unknown. This becomes
clear when local Afghans complain to those visiting the area and when there are some
reports about prisoners in Afghanistan by foreign journalists. The critical question is,
will the US Supreme Court ruling be applied to Afghan prisoners held by the Pentagon
and the CIA in Afghanistan, and who will apply it? What about the missing persons,
who should determine their status? Why does not the UN get involved, is not this a
function of the UN under it charter on human rights?
        One also wonders why the US Senate and Congress have not carried out any
hearings about the extra judicial prisons in Afghanistan. There were hearings about
the Abu Ghraib prison tortures. But, no similar hearings have been held about the
prisons in Afghanistan. Can one expect that the conditions in the secret prisons, as
well as in Bagram in Kabul are different than those of the Guantanamo Bay and Abu
Ghraib prisons? The prestige and status of the US as the leading advocate for human
rights is involved, the Senate and Congressional Foreign Relations Committees might
consider appropriate to investigate the prisons in Afghanistan and make public what
they know what is going on in US run prisons in the country. This kind of inquiry after
the scandals of the past few years might safe the US further embarrassments,
including future law suits that may be brought by prisoners. Justice cannot remain
blind for ever.
Legal experts may have to answer these issues. Further, who is going to rise to the
occasion to protect human rights in Afghanistan given the sad conditions that the
occupation of Afghanistan has created throughout the country where a state of
lawlessness prevail and much abuse is perpetrated by the occupation forces, by the
opposition forces including the Taliban, and especially by the warlords some of whom
have had private prisons never experienced in Afghanistan.
One cannot expect any legal action from the present decrepit regime riddled with so
much corruption and with the same criminal warlords and communists present in the
regime and in the Parliament in collusion with the US and NATO forces in Afghanistan.
Can some individual members of the Parliament rise to the occasion, or lawyers who
have been trained under the traditional Islamic jurisprudence? We ask these
questions and they are also implied repeatedly in the questions asked by callers to the
Afghan satellite television channels, the Payam-e-Afghan and Ariana-Afghanistan, that
hosts caller programs, and the issues are also discussed on other channels owned
by Afghans. ‘Can justice prevail in Afghanistan and when will the Afghan people see
the application of traditional Afghan justice against the past crimes committed and the
continued state of criminal behavior’, the callers demand to know? It is very obvious
from the calls for justice that the Afghans around the world do not believe justice will
prevail under occupation when warlords serve the interests of the occupation forces
against the interests of the Afghan people and at the same time the warlords are
protected by the foreign military. Even Hamed Karzai had complained about this issue
in his interview with Der Spiegal on June 6, 2008.
This is another major reason why we in the Afghan Research Society International (
ARSI) have argued for some time that the solution to the present set of problems in
Afghanistan, such as in this case the application of justice from the perspective of the
Afghan people, is that the occupation of Afghanistan must come to an end. A
government for the Afghan people by the Afghan people must be established through
genuine free elections without foreign interferences. This requires a general cease fire
to be established and an international peace keeping force from the neutral Muslim
countries under the UN must organize and monitor the next elections under national
Afghan controls for the establishment of law and order to prevail and for the Afghan
people to know how to solve their problems as they have done for centuries without
foreign interferences.
Elections under foreign military occupation and a state of war will have no validity as
the experiences of 2004 and 2005 have shown, the Afghan people argue. The surveys
by CBC and BBC in September 2007 and then in January 2008, respectively, showed
that 72% and 60% of the Afghan people demand a peaceful settlement to the conflict to
be followed by the election of a government acceptable to the majority. War is not going
to lead to peace or the establishment of the rule of law and justice in Afghanistan. The
Afghan people have struggled too long to accept the present foreign imposed
conditions that neither benefit them nor can they serve the interests of the 37 countries
with military forces in Afghanistan; if it is democracy, peace, justice, high standards for
human rights, and economic development they are seeking which respect the Islamic
principles and values always cherished by the Afghan people.   
We are not representing the views of any one except the members of ARSI. Our
deepest interests lie in what the Afghan people demand without the fulfillment of which
we do not see how peace can be established and justice prevail in Afghanistan.

M.Siddieq Noorzoy
Director,  ARSI
An independent private think tank
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