Extrajudicial Release: A New Rule-of-Law Problem?

Monday’s Wall Street Journal reported on the release, this past Sunday night, of a statement by U.S. Forces-Afghanistan, lamenting the decision of an Afghan-led review board to order the release of 37 individuals from custody. “This extrajudicial release of detainees is a major step backward in further developing the rule of law in Afghanistan,” said the military’s statement.

There are two notable problems here: one, the dispute over detention and planned release of these individuals and two, the military’s statement.

First, the detention and release. Let’s stipulate for argument’s sake that these 37 individuals present an ‘imminent threat’ and many of them have, as claimed, directly participated in attacks that killed or wounded Afghan, U.S., and coalition troops. While detention without charge or trial is not prohibited by either international humanitarian or human rights law, it has to be pursuant to grounds and procedures established by law. PoW provisions of the Geneva Conventions don’t apply because the conflict is not between two States and Afghanistan has no administrative detention law. For that reason, President Karzai has regularly objected to U.S. detention procedures. He has rightly argued that detainees should be criminally charged or released. And there are criminal trials in Afghanistan. I’ve observed such trials of persons handed over by the U.S. to Afghan authorities, using evidence obtained by U.S. forces. These trials may not be pretty by U.S. or international due process standards, but they are trials. U.S. forces presumably detained these individuals in the first place before turning detention operations over to the Afghans last year. The transfer agreement provides that the U.S. is to be consulted about releases, but the U.S. maintains no veto power. If U.S. forces have evidence of criminal conduct, they could turn it over to Afghan authorities who could then use it to build a case. And given the state of due process in Afghan courts, it wouldn’t take much. But the U.S. is reluctant. It would rather see these individuals remain in indefinite detention. It would rather complain that the Afghans are exercising their rights under the transfer agreement that the U.S. signed, even though they are doing so consistent with domestic and international law.

And this brings us to the military’s complaint about “extrajudicial release.” Where do we begin? Perhaps with the suggestion that extrajudicial detention is a process that the U.S. has been deeply committed to in both Afghanistan and Guantanamo ever since 9/11. That said, the U.S. has also engaged in extrajudicial release in both Afghanistan and Guantanamo. In fact, it has argued in court, successfully in the case of Afghanistan, that courts have no role in wartime detention decisions. The U.S.’s decisions to release detainees have been made by executive, not judicial authorities, not unlike the Afghan-led review board that wants to release the 37 men. So it’s a bit bizarre for the U.S. to be complaining about extrajudicial release.

But the most troubling aspect of the military’s statement is the attempt to paint Afghan efforts to end violations of domestic and international law as contrary to the rule of law. Article 9.4 of the International Covenant on Civil and Political Rights reflects the right of habeas corpus – the right of anyone deprived of liberty to have a court decide on the legality of detention and to order release. The U.S. military statement literally reverses the rule.

Maybe it’s not a big deal – a few ill-chosen words by people with a military rather than legal mission. But identical complaints that “extrajudicial release” of people never charged with a crime and never ordered detained by a court somehow flout the rule of law have also been made by Sens. Lindsay Graham and John McCain. Statements like this are signposts on the road to liberty lost. So I think it is a big deal that needs to be noticed and hopefully, not repeated. 

About the Author(s)

Gabor Rona

Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School