New York Times
April 10, 2008 By Tim Golden and David Rohde
KABUL, Afghanistan — Dozens of Afghan men who were previously held by the United States at Bagram Air Base and Guantánamo Bay, Cuba, are now being tried here in secretive Afghan criminal proceedings based mainly on allegations forwarded by the American military.
The prisoners are being convicted and sentenced to as much as 20 years’ confinement in trials that typically run between half an hour and an hour, said human rights investigators who have observed them. One early trial was reported to have lasted barely 10 minutes, an investigator said.
The prosecutions are based in part on a security law promulgated in 1987, during the Soviet occupation of Afghanistan. Witnesses do not appear in court and cannot be cross-examined. There are no sworn statements of their testimony.
Instead, the trials appear to be based almost entirely on terse summaries of allegations that are forwarded to the Afghan authorities by the United States military. Afghan security agents add what evidence they can, but the cases generally center on events that sometimes occurred years ago in war zones that the authorities may now be unable to reach.
“These are no-witness paper trials that deny the defendants a fundamental fair-trial right to challenge the evidence and mount a defense,” said Sahr MuhammedAlly, a lawyer for the advocacy group Human Rights First who has studied the proceedings. “So any convictions you get are fundamentally flawed.”
The head of Afghanistan’s national intelligence agency, Amrullah Saleh, said his investigators did their best to develop their own evidence. But he added that the Afghan judicial system remained crippled by problems more than six years after the fall of the Taliban.
“This is Afghanistan,” he said. Referring to the Afghan trials, he added, “I am equally critical of that procedure, but who is supposed to fix it?”
Since 2002 the Bush administration has pressed foreign governments to prosecute the Guantánamo prisoners from their countries as a condition of the men’s repatriation. But many of those governments — including such close American allies as Britain — have objected, saying the American evidence would not hold up in their courts.
Afghanistan represents perhaps the most notable exception.
Although President Hamid Karzai refused to sign a decree law drafted with American help that would have allowed Afghanistan to hold the former detainees indefinitely as “enemy combatants,” the Afghan authorities have now tried 82 of the former prisoners since last October and referred more than 120 other cases for prosecution.
Of the prisoners who have been through the makeshift Afghan court, 65 have been convicted and 17 acquitted, according to a report on the prosecutions by Human Rights First that is to be made public on Thursday. A draft copy of the report was provided to The New York Times.
United States officials defended their role in providing information for the Afghan trials as a legitimate way to try to contain the threats that some of the more dangerous detainees would pose if they were released outright.
“These are not prosecutions that are being done at the request or behest of the United States government,” said Sandra L. Hodgkinson, the deputy assistant secretary of defense for detention policy. “These are prosecutions that are being done by Afghans for crimes committed on their territory by their nationals.”
Ms. Hodgkinson said the United States had pressed the Afghan authorities “to conduct the trials in a fair manner,” and had insisted that lawyers be provided for the prisoners after the first 10 of them were convicted without legal representation. But she did not directly reject the criticisms raised in the Human Rights First report, adding, “These trials are much more consistent with the traditional Afghan justice process than they are with ours.”
The new court is located on the ground floor of a new high-security Afghan prison that was built by the United States at Pul-i-Charki, on the outskirts of Kabul.
Although Afghan officials say the trials there are not officially secret, they have allowed only three outside observers — two human rights investigators and a representative of a local United Nations office. The human rights investigators were permitted to see two trials in February, review some trial documents and interview judges, prosecutors and defense lawyers for the court.
Gen. Safiullah Safi, the Afghan Army officer who runs the prison where the trials are being held, told a reporter that permission to view the trials could be granted only by Mr. Karzai’s office. But that office referred the request to Abdul Jabar Sabit, the Afghan attorney general. Mr. Sabit’s office finally said he was too busy to meet with a journalist.
The human rights investigators who observed the operations of the new court described them as a perversion of the efforts by Afghanistan and the United States to rebuild and reform the Afghan judicial system after years of war, corruption and neglect.
They said that the defense lawyers, who work for a legal aid organization based in New York, typically meet their clients five days before their trials begin and have few resources to investigate the distant events on which they turn. At least some of the Afghan judges also appear to accept the American allegations at face value, they said, and routinely admit allegations that would not pass the evidentiary standards of special military tribunals at Guantánamo, much less the federal courts of the United States.
“The files provided by U.S. authorities and the information in them would never have been admissible in a U.S. court or even a military commission in Guantánamo,” said Jonathan Horowitz, an investigator for One World Research, a public-interest investigations firm in New York that also monitored the Afghan trials.
In an interview, one of the justices of the Afghan Supreme Court argued that while the trials might have some flaws, they represented a fair process.
“All of these trials have been prepared by our friends from the United States,” said the justice, who uses the single name Rashid. “They have seen it themselves. We don’t have any doubts about the trial not being fair.”
Justice Rashid added that he had complete confidence in the accuracy of the information that was being provided to Afghan investigators by the American military.
“I’m 100 percent sure that what was done by the United States was done according to the legal system of the United States,” he said. “And I am familiar with the legal system of the United States.”
But one case file that was partly reproduced in the Human Rights First report underscores questions that have been raised about the procedures of the Afghan trials and the American evidence with which they begin.
In a single paragraph, the United States “Report of Investigation” recounts that the Afghan prisoner Rais Mohammed Khan was detained by the police as he and a friend tried to cross the Afghan border in the eastern department of Khost on May 1, 2006. The report, which misidentifies Mr. Khan by a name his father used, Matelky, notes that he and his injured friend were suspected of having planned a suicide bombing that went awry.
“Their stories are conflicting, and the Khost Police Force believe they are directly tied to suicide attacks that were taking place during the Independence Day Parade in Khost,” the report reads. It notes that Mr. Khan appeared to lie on a polygraph examination when he denied involvement in suicide bombing. But it adds:
“Confessions/Admissions/Incriminating Statements: None”
“Physical Evidence: None”
Also in his Afghan court file was a one-page summary of the recommendation from the United States military panel that reviewed his case at Bagram. It describes him as a low threat to American and coalition forces and him as “low prosecution value.”
He was convicted under the 1987 Afghan security law and sentenced to eight years in prison. David Rohde reported from Kabul, and Tim Golden from New York.