Amid the near-constant speculation over President Barack Obama's strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the US and its NATO allies are to have a "credible partner" in the Afghan government.
But corruption takes many forms and is found at many levels. It is deeply ingrained in the DNA of the whole area. It is part of a way of life. Barack Obama knows if he can't change the culture of corruption, he can't accomplish any of his other goals - because the people simply won't trust their government.
To the lawyers of Human Rights First (HRF), understanding the relationship between corruption, how prisoners are treated and the rule of law is "critical to the success of any strategy" the Obama administration may decide to pursue.
Sahr MuhammedAlly, an HRF attorney and author of a new report, "Fixing Afghanistan," explained this. She told us, "Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated - a complete disaster," she says.
There are lots of examples. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.
A person gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again - because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man's land.
MuhammedAlly says "rule of law" training designed to prevent both kinds of situations has been going on for eight years, but has been "uncoordinated." She says the US, NATO and the Afghan government are going have to recognize that "further detention policy reforms at Bagram are critical to achieving US counterinsurgency goals in Afghanistan." And these reforms, she adds, are going to require substantial resources.
That is the central message of the new HRF policy paper. It outlines steps the United States should take now "to establish legitimacy in the eyes of the Afghan people and to more fully align US detentions with strategic priorities."
"Successful counterinsurgency depends on US actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.
The paper says, "To achieve this goal, the US government should take further steps now to support US goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of US detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."
The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the US military not to be a threat to US, Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.
According to those we interviewed in April, "prisoners held by the US military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al-Qaeda or supporters of other insurgent groups. They did not have lawyers."
Detainees, it continues, "were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the US military."
The report continues: "In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from US to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS), years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses, no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges."
Specifically, HRF recommends that the US and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for US detentions consistent with international law. In order to avoid mistaken captures, the organization says, the US must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.
The US must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint US-Afghan review body. The US should establish more transparency for detention operations by facilitating access to detainees and to US detention facilities by Afghan and international human rights organizations. And the US should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.