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S E C R E T SECTION 01 OF 03 KABUL 002802 
 
SIPDIS 
 
SIPDIS 
 
STATE FOR S/WCI, SCA/FO, SCA/A, S/CRS, EUR/RPM 
NSC FOR AHARRIMAN 
CENTCOM FOR CG CFC-A, CG CJTF-76 POLAD 
 
E.O. 12958: DECL: 06/18/2016 
TAGS: PGOV PREL PHUM KWCR AF
SUBJECT: DRAFT AFGHAN LEGAL FRAMEWORK FOR DETAINEE 
OPERATIONS 
 
Classified By: ACTING DEPUTY CHIEF OF MISSION ANGUS SIMMONS FOR REASONS 
1.4 (B) AND (D) 
 
¶1. (S) Summary: The Afghan National Security Council 
(ONSC), in consultation with relevant Ministries, 
the U.S. mission, and its own contracted legal 
expert, has developed a legal framework for Afghan 
detainee operations.  The framework, as briefed to 
the polmiloff and representatives of CFC-A, and key 
ISAF nations that are or will be engaged in combat 
operations, is comprehensive enough to address both 
the issue of how detainees transferred to Afghan 
custody from Guantanamo and Bagram will be handled 
and also the procedure for dealing with individuals 
taken off the battlefield in areas of ISAF 
operation.  The ONSC will make every effort to get 
this proposal finalized and implemented before the 
onset of Phase III operations.  End summary. 
 
¶2. (S) On June 15, the Afghan National Security 
Council called a meeting to include the U.S., 
Australian, British, Dutch and Canadian Embassies, 
CFC-A, Ministry of Interior and National Directorate 
of Security to orally brief the GOA draft legal 
framework for detainee operations.  This framework 
has been developed by the ONSC over the last several 
months with contract support from a British legal 
expert and advice from the U.S. mission (CFC-A and 
Embassy).  It comprises a comprehensive legal 
justification and procedure for how the Afghans will 
carry out detainee operations.  As such, it 
addresses how detainees transferred from Guantanamo 
and Bagram to GOA custody will be handled, but also 
what will happen to persons taken off the 
battlefield in ISAF areas.  The ONSC intention is 
for this draft to be completed and briefed to 
Principals (Ministers) by the end of this month, and 
presented to President Karzai immediately 
afterwards.  (Note: subsequent discussions indicate 
some concern that the draft will get bogged down in 
the Afghan interagency process, so the final 
timeline and approval process may differ somewhat. 
However there is a real determination on the part of 
the GOA to get this framework approved before the 
beginning of ISAF Stage III operations on/around 
August 1, 2006.  End note.) 
 
¶3. (S) The framework begins with the recognition 
that Afghanistan is in an "internal armed conflict." 
This allows for the application of relevant 
international law (Article 4 and 9 of the 
International Covenant on Civil and Political 
Rights), as well as Sharia law - the latter is 
important to bolster public and Parliamentary 
support.  Under both bodies of law, persons who 
constitute a threat can be held without trial until 
the end of the conflict.  The framework delineates 
several possible dispositions for detained persons: 
1) detained without trial under the provisions 
described above; 2) tried under Afghan security law; 
3) tried under Afghan criminal law; 4) reconciled 
and released under PTS; or 5) released outright. 
 
¶4. (S) The decision as to disposition will be taken 
after a period of time for evidence collection and 
review.  Those detainees who meet the strict 
definition of armed opposition group personnel 
constituting security threats will be held in non- 
judicial, administrative detention and undergo a 
 
KABUL 00002802  002 OF 003 
 
 
series of administrative reviews with tailored due 
process rights, under the custody and control of the 
MOD.  Those who, through this detailed process, are 
identified as candidates for prosecution will be 
referred to the Attorney General,s office for 
consideration.  If the Attorney General,s office 
concurs, the individuals will be prosecuted in the 
venue dictated by the relevant Afghan law.  In the 
event that a detainee is tried under Afghan security 
law (Afghan Internal and External Security Law, 
1987), for which the investigation is handled by the 
NDS and the prosecution is handled by the Attorney 
General,s National Security Crimes Division, the GOA 
recognizes the need for full transparency so as to 
avoid objections on human rights grounds.  The court 
to which the case is assigned is one which has 
exclusive jurisdiction over security offenses; 
however, it is answerable to the Afghan Supreme 
Court.  Access to internees throughout the process 
will be granted to ICRC and AIHRC as well as the 
original capturing power, ISAF, and OEF command 
 
¶5. (S) Consideration has been given as to where 
detainees will be held.  It was proposed that after 
the completion of Pol-e Charkhi Block 4, (expected 
on or about February 2007) all detainees transferred 
from ISAF countries to the GOA should be held there. 
There seemed to be general agreement by the ISAF 
representatives to this approach.  In the interim, 
several options were suggested to the ISAF countries 
for consideration.  The apparent consensus of the 
group was that it would be easiest for the detainees 
to be held within an MOD facility, such as a 
cordoned-off portion of an ANA base or  a section of 
an MOJ jail ceded to MOD, most probably in Kabul. 
(Note:  This would be in place of the proposed 
Kandahar City Jail, which has proved a difficult 
option.  It would be easier for the international 
community to track the status of the detained 
persons if they are held in Kabul, vice Kandahar.) 
There appeared to be agreement among the 
Europeans/Australians that the detainees should be 
handed over to the MOD and remain under the 
authority of the MOD because of their initial status 
as administrative security internees and not 
suspected criminals.  They would remain under the 
custody of the MOD until such time as they are 
transferred to the PTS commission for reconciliation 
or to an MOJ, NDS, or MOI pretrial detention 
facility, pending trial.  Upon conviction by a court 
they would be transferred to a Ministry of Justice 
prison to serve their sentence, if any. 
 
Comment 
------- 
 
¶6. (S) The full draft framework is much more 
comprehensive than the above gist and all details 
have yet to be filled in by the GOA.   Anyone with 
questions is welcome to contact post for further 
information regarding specific aspects too 
complicated to describe here.  However, it is 
important to recognize that this is, in the final 
analysis, an Afghan process.  The handling and 
prosecution of those cases which are violations of 
Afghan law must be handled according to Afghan law. 
The proposal as described to us has the major 
benefit of not requiring new Afghan legislation. 
The drafters intend that once it has been presented 
 
KABUL 00002802  003 OF 003 
 
 
to President Karzai, he will brief key 
Parliamentarians to get their support for the 
process, but that their official consent is not 
required since it is a presidential decree based on 
existing international and Sharia law.  The Afghans 
have been feeling intense pressure from the 
international community about this seeming to be a 
U.S. dictated process, and internal pressures have 
been building in the Parliament as well.  While we 
in Kabul and Washington have given them the tools 
and mentoring they need to reach a sustainable 
pragmatic solution, the final result is very much 
their own.  Fortunately, it is something we can 
accept and should welcome. 
 
¶7. (S) With regard to the provisions specific to 
ISAF nations, obviously all these will have to be 
referred to capitals.  That may generate objections 
not raised in this meeting.  However for now, at 
least, the European and Australian participants were 
very impressed by the presentation and said that it 
answered most, or perhaps all, of their pressing 
questions regarding disposition of detainees. Even 
the Dutch Ambassador, who was initially the most 
skeptical, was by the end of the presentation very 
much at ease.  We will continue to work with the GOA 
as well as ISAF command and member countries to make 
sure this draft is accepted by the International 
Community and signed by President Karzai in time for 
the Phase III handoff scheduled for August 1. 
 
NEUMANN