HUFFPOST: NEW DETENTION RULES SHOW PROMISE AND PROBLEMS

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Jonathan Horowitz Posted: April 20, 2010 12:01 PM
http://www.huffingtonpost.com

After years of blundered war-time detention policy, the U.S. military recently revamped its way of deciding who should be detained and released in Afghanistan.

The new system features Detainee Review Boards (DRBs) where detainees appear before a three-member U.S. military panel that determines whether a detainee should be released, detained until his next review in six months, or transferred to Afghan authorities for prosecution or reconciliation.

In March, I had the opportunity to observe five DRBs. One man was alleged to have distributed landmines and provided financial support to the Taliban. Another was detained after allegedly discarding a hand grenade before approaching a military checkpoint. The third was detained for having in his
house materials used for making improvised explosive devices. A fourth had alleged links to insurgent commanders. The fifth detainee was captured along the Pakistan border with a group of insurgents. Each DRB lasted one to three hours.

The DRB panel's decision is based on a "preponderance of information" that is provided by the U.S. military, the detainee, and witnesses. The panel's decision is also based on the likelihood of whether a detainee could be reintegrated back into his community without threatening international or
Afghan forces. The five detainees are awaiting the panel's decision.

The DRBs have been moving forward at an impressive pace despite limited number of staff. The military is holding DRBs five days a week. The vast majority of detainees have gone through their first review since the new procedures were implemented in September 2009.

The DRBs are held at the new Detention Facility in Parwan (DFIP), which currently holds around 800 detainees. DFIP is located on the outskirts of the Bagram Air Base and is under the full control of the U.S. government. It's a $60 million state of the art facility that has replaced the infamous
Bagram Theater Internment Facility, which is now taped off and appears empty.

DRBs are an improvement over the past system, Unlawful Enemy Combatant Review Boards (UECRBs), which had been used since 2005 by the U.S. military at Bagram. But the improvements are relative and the bar was set very low to begin with.

In April 2009, Judge Bates of the U.S. District Court for D.C., described the UECRBs as "plainly less sophisticated and more error-prone" than the Guantanamo Bay detainee review boards - and those review boards were deemed unconstitutional by the Supreme Court:

Unlike the [Guantanamo Bay process], where a petitioner has access to a
"personal representative," Bagram detainees represent themselves. Obvious
obstacles, including language and cultural differences, obstruct effective
self-representation by petitioners such as these. Detainees cannot even
speak for themselves; they are only permitted to submit a written statement.
But in submitting that statement, detainees do not know what evidence the
United States relies upon to justify an "enemy combatant" designation -- so
they lack a meaningful opportunity to rebut that evidence. Respondents'
far-reaching and everchanging definition of enemy combatant, coupled with
the uncertain evidentiary standards, further undercut the reliability of the
UECRB review.

Since that decision, the review procedures in Afghanistan have been overhauled to the DRB system. It remains to be seen, however, whether the U.S. has the right combination of procedures to build a fair process that can make an accurate determination relating to a person's detention and
freedom.

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