Abu Ghraib Redux

By William Fisher

Over the past few months, senior US military figures have been taking to the airways to reassure the public that the bulk of American and NATO forces will be ready to leave Afghanistan by 2014. Newspaper, cable news, broadcast networks – they’ve all carried prominently positioned and optimistic accounts of the excellent training the Afghan army and police are receiving and how this will make the Afghans ready to defend their country and establish the rule of law.

But then I came across a recent UN report that caused me to question everything I thought I knew. Here’s what it said:

Nearly half the prisoners in Afghan jails – including children under 18 -- have been tortured to extract confessions and deprived of the most basic due process protections, according to the United Nations Assistance Mission in Afghanistan (UNAMA). The UN body is calling on Afghan authorities to “take all possible steps to end and prevent torture, and provide accountability for all acts of torture.”

The Mission’s conclusions are based on interviews conducted from October 2010 to August 2011 with 379 pre-trial detainees and convicted prisoners at 47 detention facilities in 22 provinces across Afghanistan.

In total, 324 of the 379 persons interviewed were detained by National Directorate of Security (NDS) or Afghan National Police (ANP) forces for national security crimes -- suspected of being Taliban fighters, suicide attack facilitators, producers of improvised explosive devices, and others implicated in crimes associated with the armed conflict in Afghanistan.

The US and its NATO allies are currently training both the police force and the security services to keep the peace and maintain law and order in the country. It is unclear whether their training extends to professional prison procedures.

In situations where torture occurred, it typically took the form of abusive interrogation practices used to obtain confessions from individuals detained on suspicion of crimes against the State. The practices documented meet the international definition of torture.

Torture occurs when State officials, acting in their official capacity inflict or order, consent or acquiesce to the infliction of severe physical or mental pain or suffering against an individual to obtain a confession or information, or to punish or discriminate against the individual.

Such practices amounting to torture are among the most serious human rights violations under international law, are crimes under Afghan law and are strictly prohibited under both Afghan and international law.

Detainees described experiencing torture in the form of suspension being hung by the wrists from chains or other devices attached to the wall, ceiling, iron bars or other fixtures for lengthy periods) and beatings, especially with rubber hoses, electric cables or wires or wooden sticks and most frequently on the soles of the feet.

Electric shock, twisting and wrenching of detainees’ genitals, stress positions including forced standing, removal of toenails and threatened sexual abuse were among other forms of torture that detainees reported. Routine blindfolding and hooding and denial of access to medical care in some facilities were also reported.

UNAMA documented one death in ANP and NDS custody from torture in Kandahar in April 2011.
UNAMA’s detention observation found compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS detention experienced interrogation techniques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan.

Nearly all detainees tortured by NDS officials reported the abuse took place during interrogations and was aimed at obtaining a confession or information. In almost every case, NDS officials stopped the use of torture once detainees confessed to the crime of which they were accused or provided the requested information.
UNAMA also found that children under the age of 18 years experienced torture by NDS officials.

More than one third of the 117 conflict-related detainees UNAMA interviewed who had been in ANP detention experienced treatment that amounted to torture or to other cruel, inhuman or degrading treatment.

UNAMA found compelling evidence that NDS officials at five facilities systematically tortured detainees for the purpose of obtaining confessions and information. These are the provincial NDS facilities in Herat, Kandahar, Khost and Laghman, and the national facility of the NDS Counter-Terrorism Department 124 (formerly Department 90) in Kabul.
UNAMA received multiple, credible allegations of torture at two other provincial NDS facilities in Kapisa and Takhar. UNAMA did not find indications of torture at two provincial NDS facilities, Paktya and Uruzgan, at the time of its visits to these facilities.

UNAMA received numerous allegations regarding the use of torture at 15 other locations covering 17 NDS facilities. Twenty-five percent of detainees interviewed in these 17 facilities alleged they had been tortured. At the time of writing of this report, UNAMA had not established the credibility of the allegations based on the number of interviews conducted and the need to corroborate allegations satisfactorily. UNAMA continues to investigate these allegations.
Detainees in ANP custody reported that abuse occurred in a broader range of circumstances and settings. Some of this abuse constituted torture while other methods amounted to cruel, inhuman, or degrading treatment. Reports of abuse by the ANP included police officers committing torture or ill-treatment at the time of arrest, at check posts, at district headquarters, and at provincial headquarters.

The UN notes that the Government of Afghanistan is obliged under Afghan law and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to investigate promptly all acts of torture and other ill-treatment, prosecute those responsible, provide redress to victims and prevent further acts of torture.

The Government’s obligation to respect the prohibition against torture is also non-derogable meaning that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, can be invoked as a justification of torture.

UNAMA’s detention observation included interviews with 89 detainees who reported the involvement of international military forces either alone or together with Afghan forces in their capture and transfer to NDS or ANP custody. UNAMA found compelling evidence that 19 of these 89 detainees were tortured in NDS custody and three in ANP custody.
The situation described in this report of transfer to a risk of torture speaks to the need for robust oversight and monitoring of all transfers of detainees to NDS and ANP custody by international military forces in Afghanistan, and suspension of transfers to facilities where credible reports of torture exist.

Canada and the United Kingdom ceased transfers of detainees to NDS facilities in Kandahar and Kabul at various times in recent years based on reports of torture and ill-treatment. These countries implemented post-transfer monitoring schemes allowing them to track the treatment of detainees their armed forces handed over to Afghan authorities. The United States Embassy recently finalized plans for a post-transfer detainee monitoring program and a proposal is with the Government of Afghanistan for its consideration.

UNAMA found that accountability of NDS and ANP officials for torture and abuse is weak, not transparent and rarely enforced. Limited independent, judicial or external oversight exists of NDS and ANP as institutions and of crimes or misconduct committed by NDS and ANP officials including torture and abuse.

Most cases of crimes or abusive or unprofessional conduct by NDS officials are addressed internally. Senior NDS officials advised UNAMA that NDS investigated only two claims of torture in recent years, neither of which led to charges being pursued against the accused.

The Embassy advised UNAMA that it regards the program as a positive way for the US to continue its work with the Government to ensure its detention system is safe, secure and humane.

In early July 2011, US and ISAF military forces stopped transferring detainees to NDS and ANP authorities in Dai Kundi, Kandahar, Uruzgan and Zabul based on reports of a consistent practice of torture and mistreatment of detainees in NDS and ANP detention facilities in those areas. In early September 2011, in response to the findings in this report, ISAF stated that it stopped transferring detainees to certain NDS and ANP installations as a precautionary measure.
In almost all criminal cases in Afghanistan, including national security prosecutions, the case against the defendant is based on a confession, which the court usually finds both persuasive and conclusive of the defendant’s guilt. In most cases confessions are the sole form of evidence or corroboration submitted to courts to support prosecutions. Confessions are rarely examined at trial and rarely challenged by the judge or defense counsel as having been coerced.

Under Afghan law, where a confession is obtained illegally or forced, for example, under torture, it should be inadmissible in court. However, even in cases where defense lawyers raise the issue of forced confession through torture, courts usually dismiss the application and allow the confession to be used as evidence. This evidentiary practice clearly violates the letter and spirit of the law and is inconsistent with many expert studies that show information gained by torture is manifestly unreliable and non-probative of an individual’s guilt or innocence.

Another weakness in procedural safeguards for detainees in NDS custody is the lack of access to counsel. Despite the right of all detainees under Afghan law to a defense lawyer at all stages of the process, only one of the 324 detainees UNAMA interviewed in ANP or NDS detention reported they had defense counsel. Almost all defense lawyers and legal aid providers informed UNAMA they had minimal access to NDS facilities as NDS officials deliberately prevented them from accessing detainees. NDS officials told UNAMA they deny detainees’ access to defense lawyers for fear they will influence detainees and hinder NDS investigations. Defense counsel reported they generally had better access to detainees held in ANP facilities but only after ANP investigating officials presented the case to the prosecutor.
Athough detainees have the right under Afghan law to family visits, only 28 percent of detainees interviewed were permitted family visits during their detention in NDS facilities.
UNAMA documented other due process concerns and violations by NDS and ANP officials. These include the routine failure to meet procedural time limits demarcating the phases of the pre-trial criminal investigation and chain of custody, lack of clarity in the roles of arresting authorities and prosecutors, and lack of judicial oversight of pre-trial detention until very late in the pre-trial process.
Since most conflict-related detainees do not have access to defense counsel or information about their rights, the absence of these procedural safeguards has a huge negative impact on detainees’ ability to challenge the legality of their detention, prepare a credible defense, or seek protection from torture or coercion.
Is this what we hoped to achieve in Afghanistan over the past ten years? I don’t think so.

I think that when military brass comes to the US to testify before Congress or meet with key lawmakers, they tend to talk about Afghanistan, the big picture. I have never heard a visiting officer say a single word about prisons, unless he/she was asked a question.

And when Congressional delegations travel to Afghanistan for first-hand briefings, I doubt that Afghan (or American, for that matter) prisons are anywhere close to their itinerary.

They may or may not be encouraged by what they see – what they’re shown – but it’s clear that prisons didn’t make the cut.

Do we have to have another Abu Ghraib-type scandal before we can cajole Mr. Karzai and his people to stop torturing detainees and follow his own country’s laws?

That’s exactly what’s gong to happen if Karzai continues to ignore this barbarian behavior. And that will bring a heap of trouble, not only for Karzai, but for our troops in Afghanistan and their leader, Barack Obama.