Letter to the Editor

The Department of Defense responds to Black Hole, Daphne Eviatar's report on the legal status of the detainees at the U.S.-controlled air base at Bagram.

, The American Lawyer

The article that ran on November 13, 2008, about the U.S. detention facility at Bagram Air Field in Afghanistan was inaccurate and disappointing. While Ms. Eviatar contacted the Department of Defense (DoD) for comment, she did not accurately reflect the comments she received and presented flawed information as fact.

Far from being in “legal limbo,” as Ms. Eviatar contends, individuals detained at the Bagram Theater Internment Facility (BTIF) are held pursuant to the law of war.  There is no question that U.S. and coalition troops are engaged in combat with al Qaida, the Taliban, and associated forces in Afghanistan today, as they have been for the past seven years. The laws and customs of war govern the detention of these enemy combatants who continue to engage in hostilities against U.S. and coalition forces.

To remove the age-old ability of a country at war to detain those who are fighting against it would cripple military operations and increase the likelihood of prolonged combat and civilian casualties.  The rule of law, which includes the law of war, allows for the detention of enemy combatants, with or without prosecution for any criminal offenses they may have committed.  This has been true in all traditional conflicts and remains true today.  The Supreme Court affirmed this authority in the 2004 Hamdi case, approving the wartime detention without trial of an American citizen.

Although U.S. authorities frequently use our criminal law framework to prosecute terrorists captured on U.S. soil by law enforcement officials, this legal framework is designed principally for domestic or peacetime offenses, which lend themselves more easily to the collection of evidence, subpoenaing of witnesses, and the like.  Such law enforcement activities are often impossible on the battlefield.

Detainees in U.S. military custody are, however, afforded administrative process consistent with the requirements of the laws and customs of war.  To that end in Afghanistan, we have instituted a process called the Unlawful Enemy Combatant Review Board (UECRB), pursuant to which detainees are informed of the basis for their detention and afforded the opportunity to present information to, and to appear in person before, the Board.  UECRB determinations are based on a preponderance of evidence standard, and final UECRB recommendations are made in closed session by majority vote. 

Ms. Eviatar’s decision to repeat, as if they were fact, baseless allegations of serious violations of international and U.S. law in the treatment of detainees also does a disservice to your readers.  Although there have been substantiated cases of abuse in the past, for which U.S. service members have been held accountable, our enemies also have employed a deliberate campaign of exaggerations and fabrications.  The suggestion that DoD personnel, the overwhelming majority of whom serve honorably, are or ever were engaged in systematic torture or abuse of detainees does not withstand scrutiny. 

DoD does not tolerate the abuse of detainees.  All credible allegations of abuse are thoroughly investigated, and appropriate disciplinary action is taken in the relatively few instances when those allegations are substantiated.  We take such matters very seriously.

Furthermore, DoD has gone to extraordinary lengths to provide the safest and most humane environment possible for the detainees in our custody.  It is for this reason that we are building a new facility at Bagram, which will improve conditions for the detainees and the U.S. military personnel who guard them, by providing more space for recreation, greater access to fresh air and natural light, and educational and vocational programs that will contribute to detainees’ rehabilitation and reintegration into society upon their release.  The decision to build the new facility was not driven by a need for greater capacity, as Ms. Eviatar contends.

Despite acknowledging that the International Committee of the Red Cross (ICRC) has access to the BTIF, Ms. Eviatar also contends that detainees are held there incommunicado, which is simply not true.  The ICRC is the organization charged with monitoring compliance with the laws and customs of war as they pertain to detention and has access to all individuals interned by the U.S. military in Afghanistan.  The ICRC delivers mail to the detainees and has partnered with us to facilitate increased family access at the BTIF.  With the ICRC’s help, we have also instituted a program of video-teleconferences between detainees and family members who cannot travel to Bagram.  Detainees will have increased access to their families as we move to the new facility at Bagram.

Our extremely productive relationship with the ICRC is based on confidentiality, which is why the ICRC “does not issue public reports,” as Ms. Eviatar notes.  We value the ICRC’s input and address their concerns in a constructive, on-going dialogue at all levels of command and civilian leadership.

Assertions that the U.S. military controls any portion of the Pol-e Charki prison in Afghanistan are also untrue.  In 2007, DoD renovated Block IV of Pol-e Charki prison to establish the Afghan National Detention Facility (ANDF), which now houses Afghan nationals transferred from the BTIF and Guantanamo to the exclusive custody and control of the Government of Afghanistan.  The ANDF is an Afghan facility run by Afghan Ministry of Defense personnel.  Afghan authorities have complete discretion to decide which detainees transferred to the facility will remain in detention and which will be released.

Likewise, criminal prosecutions of detainees transferred to the ANDF are completely within the discretion of Afghan authorities.  Trials are conducted by the Afghan judiciary, in accordance with the Afghan criminal code, for crimes committed in Afghanistan.  These trials are conducted in a manner consistent with traditional Afghan judicial processes, which differ in many ways from the U.S. judicial system.  DoD legal professionals are working within the context of this Afghan system to ensure that basic fair-trial standards, including representation by defense counsel and notice to defense counsel and the accused are upheld.

Assertions that DoD transfers detainees to the ANDF in order to escape American judicial scrutiny are completely unfounded.  The decision to transfer a detainee to his home country is based on an assessment of the threat the detainee poses and the country’s ability to mitigate that threat, as well as an assessment of the country’s human rights record.

Incidentally, DoD currently detains approximately 600 individuals in Afghanistan, not 14,000, as Ms. Eviatar contends in her article.

We recognize that disagreements exist over the legal framework that applies to U.S. detention operations in Afghanistan.  Nonetheless, it is important that the accompanying public dialogue be based in fact rather than unsubstantiated allegations.  Accurate and thorough reporting is vital to the continuing discourse.

Sincerely,
Sandra Hodgkinson,
Deputy Assistant Secretary of Defense for Detainee Affairs