Karzai's constitution subverted by the west | Clive Stafford Smith

Before a prison facility at Bagram can be handed over to Afghan authorities, civil rights must be suspended. O the irony

As the UK coalition government considers how to replace control orders with other restrictions on freedom imposed without trial, they would do well to witness the consequences of the brave new world that Britain and America have created in the wake of 9/11. The UK's coalition is a partner in another coalition, in Afghanistan, where the US looks to hand over responsibility for the prisoners in Parwan prison to the Karzai government. Here, they have come face-to-face with an intractable problem: they are holding 1,400 prisoners without trial. Every week, the number grows; it is predicted to rise to 3,200. Some have been there for many years.

Dare we allow them to face Afghan justice?

According to the US, few if any of these prisoners would be convicted at a fair trial. They have been detained as a result of intelligence tips and hearsay is not admissible in court; and there is no forensic evidence that proves them guilty of any crime.

"Right now," one unnamed, but clearly unnerved, senior American official said this week, "if we turned them over to the Afghans tomorrow, they'd be in a position, under their laws and their constitution, that they may be released."

In other words, the Afghan legal system would respect their legal rights and, if they were not charged with a crime, they would have to be set free. Ten years ago, this would have been seen as a sign of great progress. Had the Taliban recognised the ancient writ of habeas corpus, and insisted on freedom or a fair trial, we would have been both surprised and delighted.

Ten years on, we have taught the world a better way. Among the Afghan rules that concern the Americans is the requirement that a suspect be charged within 72! hours o f arrest. He must also be granted a speedy trial generally, within two months. The US also worries that a detainee must be tried in the province where he committed his crime.

Compare these "problems" with the rights ascribed to citizens under the US bill of rights, the paradigm that we once hoped to export to the lawless countries of the third world. The US constitution requires that the suspect be charged within 48 hours, and be allowed a speedy trial. The sixth amendment provides that he has a right to be tried "in the state and district" where the crime occurred.

The advocacy organisation Reprieve, which I work for, has been pressing for months without success for legal redress for Hamidullah, a Pakistani kid who is in Parwan. He was just 14 years old when the Americans detained him, and he appears to be wholly innocent of any crime. After several years in which to gather evidence, his American captors recently conceded that they do not even know how old he is. Yet, they have successfully argued that he should be allowed no legal rights.

US officials will not speculate when a handover will occur, but say that a "detentions decree" from Karzai is a critical prerequisite. In other words, before he will be allowed to assume custody of Hamidullah and hundreds of other prisoners, Karzai must commit to dismantling the Afghan rule of law.

Thus is our civilisation exported to the world.


guardian.co.uk Guardian News & Media Limited 2011 | Use of this content is subject to our Terms & Conditions | More Feeds



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