The Magazine

To Have and To Hold

A long overdue rethinking of detention policies in Afghanistan.

Aug 3, 2009, Vol. 14, No. 43 • By MAX BOOT
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If and when U.S.-led counter-insurgency operations gain irreversible momentum, lots of Taliban are expected to flip over to the government's side as happened in Iraq with the Awakening councils and the Sons of Iraq. But to gain momentum in the first place it is important to take a lot of terrorists off the streets (or, more accurately, off the hills)--either by killing them or by locking them up. And there is a lot to be said for the latter over the former. You can't interrogate dead men, and the massive use of firepower is sure to alienate the population even more than massive lockups.

As I discovered during a visit a few months ago, no one knows how many suspected terrorists the Afghans are holding--itself a major part of the problem. There needs to be a much better accounting of prisoners. A July 20 article in the New York Times cites a figure of 15,000 detainees, but this covers the country's entire prison population, most of them common criminals. Only about 350 detainees are being held at the special high-security wing of the Pul-i-Charkhi prison, which was set up with U.S. help.

The first and most urgent demand is to put a lot more suspected terrorists behind bars, while being careful to avoid the kind of backlash that would occur if U.S. troops were to start indiscriminately rounding up young men. In Iraq in 2003-04 we saw how large-scale sweeps and detentions can alienate the population, but we also saw in 2007-08 how targeted operations based on good intelligence can dramatically improve a situation by taking hardened killers off the streets. That kind of intelligence can be generated only by having troops live in small outposts among the people, something that is only now starting to happen in some of the most insurgent-infested areas of southern and eastern Afghanistan.

The second and equally urgent demand is to improve detention operations so that larger numbers of detainees can be held securely and safely--and ensure that those who are eventually released don't come out more embittered and better versed in the dark arts of destruction than when they went in.

There are daunting obstacles in the way of accomplishing these urgent objectives. The biggest problem is the lack of Afghan government capacity. There are not nearly enough judges, lawyers, or prison guards, and the ones who exist are too often corrupt, incompetent, and unprofessional. A dramatic indication of the problem was the fact that the Taliban were able to raid a major prison in Kandahar a year ago, freeing hundreds of their compatriots. Iraq had (and still has) many of these same issues, but they were somewhat alleviated by an American Rule-of-Law Task Force which built court houses, trained prison guards and judges, and undertook other steps to boost Iraqi capacity. No such large-scale effort has yet been undertaken in Afghanistan.

There is another obstacle in Afghanistan that we didn't face in Iraq. That would be NATO. Our European allies are so wary of being involved in "another Abu Ghraib" that they have gone to the extreme of refusing to take part in detention operations altogether. Troops operating under the NATO mandate--that is, almost all foreign troops in Afghanistan, including almost all Americans--are allowed to hold detainees for only 96 hours. Then they have to either release them or turn them over to the Afghans. Neither choice is a good one. As one officer at Task Force Guardian, the U.S. unit in charge of detention operations, told me, "With the NATO policy the Taliban have a sanctuary right here in Afghanistan." Troops I talked to in southern Afghanistan complained of a "catch and release" policy, with U.S. detention officials accepting only "high value targets." Many lower-level detainees had to be cut loose even if they were still dangerous.

The final problem is the U.S. courts. Already one federal judge has given Bagram detainees captured outside Afghanistan the right to challenge their detention in habeas corpus proceedings in American courts. If this precedent stands and expands, it could put at risk the entire war effort. Troops cannot effectively fight a massive insurgency if bound to observe the same constitutional protections we extend to criminal suspects at home. They need to have the authority to lock up those deemed a threat, often on the basis of secret intelligence that can't be shared with the accused, even if there is no evidence "beyond a reasonable doubt" to convict them in a court of law.