Who controls Afghanistan’s Bagram prison?

The prison now known formally as the Detention Facility in Parwan province, sits on Bagram US air base in Afghanistan. It has been in operation for more than 10 years and thousands of prisoners have been held there.

“My perspective is that this is just the US government trying to have its cake and eat it too. It wants to project the appearance of a handover without really creating the reality of a handover of sovereignty and control to the Afghans.“ – Ramzi Kassem, a professor of law

Though it was recently rebuilt and renamed, many refer to it as Afghanistan’s ‘Guantanamo’ with its reputation tainted by allegations of serious prisoner abuse by US soldiers.

On Monday a ceremony was held to transfer formal control of the prison to the Afghan authorities. But behind what was officially billed as a “splendid ceremony’ serious issues are yet to be resolved.

More than 3,000 detainees have been transferred to Afghan control but around 50 foreign prisoners remain under US custody.

Another 600 prisoners have been detained by US forces since the handover agreement was signed in March. According to a report from the Open Society Foundation, these prisoners are not covered by the agreement.

In fact it appears that US officials will continue to capture and detain Afghans at Bagram, for up to six months at a time, before handing them over to Afghan authorities – even though the Afghan government maintains that citizens “on Afghan soil’ can no longer be detained by the US military.

“What this illustrates is that the Afghans clearly have a much different view of what they want out of this agreement; about what level of control they want over detainees going forward. Again, it’s not about the 3,000 plus that have been handed over thus far but about what the US can do with respect to the detainees and individuals captured in Afghanistan.“ – Christopher Rogers, Open Society Foundation

Rights groups are deeply concerned about the new criteria for internment. Under Article 4.1h of the memorandum, a person can be interned if they meet one of the following three criteria:

If the detainee was a member of, or substantially supported, an armed group engaged in hostilities against Afghanistan or international forces; or,

If the detainee committed or attempted to commit a belligerent act; or

If the detainee substantially supported the commission or attempted commission of a belligerent act by another

The Afghan government, in consultation with and at the urging of the US, has developed its own system of indefinite detention without trial. But even within the present administration, many feel that it contravenes the Afghan constitution.

So how strained are US-Afghan relations and what does this row mean for the future of Afghanistan?

To discuss this on Inside Story Americas, presenter Shihab Rattansi, speaks to Ramzi Kassem, a professor of law at the City University of New York who represents a Yemeni detainee at Bagram; Christopher Rogers from the Open Society Foundation and the co-author of a report entitled ‘Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide over US Detention Power’; and Marc Jacobson, a senior advisor at the German Marshall Fund, and was both the deputy NATO senior civilian representative and the international affairs director of the International Security Assistance Force in Afghanistan between 2009 and 2011.

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PRISON HANDOVER AGREEMENT:

• The memorandum between the US and Afghanistan is not legally binding
• The US still wants some prisoners held indefinitely without trial
• The US still controls one block at the Bagram facility
• The US still holds about 50 foreign nationals, mostly Pakistanis
• Afghanistan’s President Hamid Karzai and US General John Allen are said to differ on the memorandum, which led to reduced US presence at the transfer ceremony
• The US has detained 600 people since March, who are in US custody
• Disputes remain over legal immunity for US troops in Afghanistan
• Disputes remain over control of US special operation in Afghanistan
• Open Society Foundation report: Afghans have internment system modelled after the US system
• Open Society Foundation Report: Afghan officials insist US internments will end in September
• NATO says it will withdraw troops from Afghanistan in 2014