Trip Report

Kangaroo Court

The Obama administration has done much to clean up the legal mess in Guantánamo. But as the ongoing trial of a top al Qaeda suspects makes clear, it has not done nearly enough.

GUANTÁNAMO BAY, Cuba — I had not planned on paying a visit to Camp X-Ray on this trip to Guantánamo. The remains of the old facility, originally set up to house Haitian refugees and later used as the first detention center for prisoners captured in the "war on terror," are not much to look at: pieces of wood and razor wire, cobbled together at the bottom of a green hill. It held detainees in what were essentially small fenced-in cages, exposed to the elements. It's been closed for a long time, though it is still standing, the military escorts tell me, under a court order.

By contrast, the courthouse in nearby Camp Justice, where a handful of the remaining 168 Guantánamo detainees are now on trial, is much more imposing. A hangar-like building, designed to be portable although it is rooted firmly on the ground, it is grey and windowless, surrounded by a sea of pavement and bright orange barricades.

Had I been able to choose, I would have been in there instead of visiting what was left of Camp X-Ray. But all observers were locked out of the courthouse that Wednesday, July 18. So was the defendant in last week's hearings, Abd al Rahim al-Nashiri, who is charged with arranging the 2000 bombing of the USS Cole and other crimes. Only the judge, prosecutors and defense attorneys, some in military uniform, were allowed into the closed hearing, to start discussing how to handle classified evidence the prosecutors would eventually introduce in the case.

The closing of the hearing to review secret evidence looked dramatic. But it was only one of several questions raised in July's pretrial hearings in US v. Al-Nashiri that strike at the heart of what it means to have a fair trial.

From the outside, the hearings -- which, though closed Wednesday, were open to the media and observers on Tuesday and Thursday -- looked much like those in any other case. Lawyers argued various motions. The judge, sometimes impatient, pressed them with questions, and issued rulings. The defendant sat on the bench quietly listening. Family members of victims and observers sat and watched.

But of course, these aren't normal hearings. On the first day, a heavy military guard escorted Nashiri, a young-looking Saudi who came in dressed all in white prison garb (his lawyer later gave him a suit jacket to wear over his clothes, perhaps because of the heavy air conditioning in the room) and regularly turned around, peering intently to try to see who else was there. After being barred from participating on Wednesday, Nashiri decided not to attend the remainder of the proceedings. One prominent member of the defense team wore a kangaroo pin on his lapel, presumably to express his opinion of the court. Observers and victims' relatives were separated from the courtroom by heavy glass and heard the proceedings with a 40-second delay on closed circuit TV. This time, media and observers were also strictly separated from each other in the courthouse complex. And the setting here in Guantánamo is tightly guarded, surrounded by concertina wire, thick walls, and two layers of security checks that our Defense Department escort described as "TSA on steroids."

Nashiri's is one of only two cases being heard in the revised military commissions set up under the 2009 Military Commissions Act (the other involves the 9/11 attacks). But this is no minor test case. If convicted, Nashiri faces the death penalty -- which alone should require the highest standards of due process. And he is one of only three people the George W. Bush administration admitted to having waterboarded, a form of torture, during several years in which he was held in secret CIA detention facilities.

In motion after motion last week, the defense argued basic issues of justice and fair process: Would Nashiri be allowed to hear discussions about the evidence against him? Should the judge recuse himself because, having been called back from retirement to receive higher military pay, he had an incentive to rule in favor of the military prosecutors? Should the public be able to watch the proceedings on broadcast TV? Even resource issues, which seem dry at first glance (for example, the question of whether the defense should be allowed to hire an additional paralegal or how many pages of discovery it can have translated into Arabic) pointed to the awkward structure of the system. The Convening Authority -- a military entity aligned with the prosecution -- decides how much money the defense will get to spend in building its case. The sheer number of basic questions that needed to be resolved speaks to how new the system is, and how different from a regular civilian court proceeding.

More important, injustice is deeply embedded in the rules of the system itself. Evidence that would never be admitted in a U.S. civilian court can be used against defendants in military commissions. Some types of hearsay evidence are allowed, and coerced witness statements can be admitted as long as the judge deems them "reliable." Since much of the evidence against Nashiri is classified, his attorneys will often see only summaries of the evidence against him. Under these circumstances, it is hard to understand how defense attorneys can effectively challenge the reliability of evidence. And it is easy to imagine how someone could get convicted -- and sentenced to death -- on pretty tenuous grounds.

And then there is the elephant in the room: the issue of torture. Nashiri was tortured. The U.S. government has admitted it -- although it claimed when doing so that the waterboarding he was subjected to was not torture -- and his case is already tainted by it. Yet virtually none of the evidence of his torture will be heard in this case. The CIA has classified everything related to Nashiri's treatment and torture while he was in their custody, and the accused himself is not allowed to speak about it. This will never be discussed in an open courtroom. The public will hear about it only in passing. Coupled with volumes of secret evidence, it is hard to imagine how this trial could ever be seen to be fair. And yet a man's life hangs in the balance.

Whatever Nashiri did -- and we may never know for sure exactly what happened -- we should not compound it by further damaging the integrity and fairness of the U.S. legal system. Barack Obama's administration has made much of the improvements to the military commissions system, and has pitched them as a valid way of prosecuting terrorist suspects. Indeed, the military commissions have improved from their earlier iterations. But ultimately, the Obama administration's effort to salvage the commissions was always doomed to fail. There is simply no way to make such an untested, secretive, and unfair system legitimate, and that will only become more obvious as the cases progress.

When, more than a decade ago, the U.S. public first saw pictures of detainees in orange jumpsuits, shackled in what looked like cages at Camp X-Ray, many were shocked. Years later, I still found it disturbing to see the camp's remains. By contrast, on the surface the military commissions do not look quite as bad: They have a veneer of due process, of fairness, of equity, and many in the United States have forgotten about what is happening here. But that only makes the problem all the more pernicious. And based on last week's hearings, it looks like it's only going to get worse.

John Moore/Getty Images

Trip Report

Life After Karzai

America might not be able to pick a winner in Afghanistan, but at least it can try to block a loser.

Foreign Policy introduces "Trip Report," a new feature that takes readers behind closed doors with some of the world's sharpest minds for an intimate, unfiltered look at subjects ranging from the European economic crisis to the course of the war in Afghanistan. Think of it as a new kind of intelligence -- a backstage pass to rooms you haven't been cleared into before.

Where I went: For all the worries about Afghanistan today, there was something uplifting about many of the conversations I was privileged to be part of on my most recent trip there, in May, with former U.S. Ambassador Ronald Neumann as my travel partner and with the NATO-led International Security Assistance Force (ISAF) as the official sponsor of the trip.

A spirit of hopefulness, more than fear, characterized most people I spoke with in Kabul. The recent signing of the U.S.-Afghanistan Strategic Partnership Agreement (SPA) to guide cooperation after 2014, when the NATO combat mission is set to end, reassures many Afghans that they will not be left to their own darker angels -- or the mercy of their neighbors -- when ISAF's transition is complete. Although implementing protocols and a status of forces agreement for the SPA may prove difficult to negotiate, the accord has definitely given a boost to the strides of many Afghan reformers who continue to work hard for their country's future.

What's new: More than ever before, politics is breaking out in Afghanistan. The 2014 presidential election is still two years away, but new political organizations like the Right and Justice Party are forming under the leadership of people like former Interior Minister Mohammed Hanif Atmar. Reform movements designed to get out the vote and improve the independence and integrity of the electoral process, like the Coalition for Reform and Development, are gaining steam.

And everyone is forming shortlists of the most likely candidates for the race. Among the names one hears are former officials like Atmar and Abdullah Abdullah; U.S. citizens with Afghan ties or ancestry, including former U.S. Ambassador to Afghanistan Zalmay Khalilzad and former Interior Minister Ali Ahmad Jalali; current government officials including Education Minister Ghulam Farooq Wardak, presidential advisor Ashraf Ghani, and perhaps even Gov. Gul Agha Sherzai of Nangarhar province. But not all is well; the shortlists also often include some who give major apprehensions to many foreign officials -- among them a former chief of staff to President Hamid Karzai and some of the president's relatives.

There are other hopeful indicators in Afghanistan on the political front, too. For example, recent Asia Foundation work suggests that the quality of governance at the provincial level in Afghanistan is improving. There are still too many bad actors and too much interference from Kabul in the day-to-day operations of regional governments. But by one itemized system of measurement, at least, the average quality of provincial governance has improved at least 10 percent over the last year.

Much still needs to be done on the political front, of course, before 2014 elections even happen. Electoral watchdog organizations need to be strengthened and made more independent of the presidential palace, and means of possible voting fraud need to be reduced. Otherwise, cheating and scandal could delegitimize the election outcomes and contribute to more ethnic tension.

Beyond these technical improvements, we also need much clearer focus on the big issue: how to use Western leverage to ensure that no warlord or extremely corrupt actor is elected president. This is the 800-pound gorilla that is not yet getting adequate attention, perhaps out of too much political correctness that the international community should not pick winners in a sovereign state's own elections. It is true that the international community should not pick a winner. But it can and must identify a few surefire losers -- before they can build up enough momentum to have a chance to win the presidency.

The takeaway: Often, the Afghanistan policy debate has an oxymoronic feel. We focus on the military transition from ISAF-led operations to Afghan-based security, according to a careful plan worked out first at NATO's Lisbon summit in 2010 and recently reaffirmed at the May 2012 NATO summit in Chicago. This is fine and necessary. But we spend far less time thinking about political transition as Karzai's second term ends and what will happen when he is required to vacate the palace come 2014.

Military strategist Carl von Clausewitz taught us that war is a continuation of politics by other means, implying that a successful end to any war must be politically based. This is even truer in counterinsurgency, where much of the struggle is for the proverbial hearts and minds of citizens who might or might not support the insurgency depending on their views about the legitimacy of their government.

Not all is lost. The international community does focus on specific aspects of Afghan politics. We try to pressure Karzai to fight corruption more assertively. Personnel from the U.S. State Department and U.S. Agency for International Development, along with foreign advisors from other countries, embed with military units in the field to try to help strengthen local Afghan governance. We all chase after the elusive and improbable peace deal with the Taliban. And of course, we try to struggle through our tortured half-partnership and half-rivalry with Pakistan.

But in most NATO capitals, we think far less about the fact that Afghanistan is due to have a presidential election in 2014 -- the results of which could be the single-most important determinant of our prospects for reaching an acceptable outcome and averting defeat in this seemingly interminable war. U.S. Ambassador Ryan Crocker and others on the ground in Kabul are surely aware of the crucial significance of the upcoming election, but it has not yet been grasped in Washington. For example, Crocker and others have, in recent months, helped persuade Karzai to firm up his public pledges that he will not extraconstitutionally seek another term in office. But leverage over the most important Afghan transition of all requires much more than a pledge. We need a strategy to be sure that the next Afghan president is more effective than Karzai -- rather than even more prone to cronyism or even less able to get a handle on corruption and patronage. Right now there is no such strategy, and Afghans can tell.

A snapshot of Afghanistan today: The war in Afghanistan is now a slog, at best. Even those of us supporting the mission there must acknowledge that it has been slower and harder going than expected. With Osama bin Laden dead and other al Qaeda leaders also out of the picture (or out of the region), the original motivation for the effort seems less compelling to many as well.

But there are considerable reasons for hope in Afghanistan. These positive indicators must be kept in mind lest we persuade ourselves incorrectly that the mission has somehow already failed -- an increasingly prevalent view among Western publics, parliaments, and some top officials.

At the same time, for every hopeful indicator, there is a reminder of how far we still have to go. This should not be seen as reason for fatalism, but as a clarion call of just how important the 2014 political transition will be for Afghanistan's future. Reasonably competent and serious leadership -- and there are many in Afghanistan who can provide such qualities for their country -- can build on the positive trends, even if it will take a long time to construct a strong Afghan state. Poor leadership could result in the fragile gains dissipating and the prospects of stronger insurgency, civil conflict, and state collapse increasing.

In terms of encouraging trends, consider the following:

Afghan security forces have almost reached their envisioned full size of 352,000, counting army and police. They are fighting, too. They are now collectively taking at least twice the casualties of NATO forces, participating in at least 90 percent of operations, and leading some 40 percent of operations (albeit usually the simpler ones at this point). They repulsed the April 15 Haqqani network attack on Kabul and other cities largely on their own.

Although the security forces still suffer from political patronage appointments and corruption, the problems are being partially addressed. Some 50 Afghan army leaders in the country's east alone have been replaced over the last year; 70 police officers were just fired recently in the country's west for poor performance; the Defense Ministry has opened a full criminal investigation into the problems that produced corruption and theft at Afghanistan's main military hospital last year. Such efforts could be too little, too late. There are serious corruption problems -- as in the Afghan Air Force. And some of the firings and hirings raise concerns of ethnic bias in the security ministries. But on balance the progress is picking up.

The Afghan Local Police (ALP), a form of armed community watch overseen by NATO troops, is generally proving its mettle. These lightly armed and locally organized forces, which now number some 12,000, are holding their ground in some 80 percent of firefights, even when sometimes outgunned by the Taliban, taking the highest rate of casualties of any part of the Afghan security forces in the process.

There have been a handful of cases of abuse within this program, and a number of illegal militias are falsely adopting the name Afghan Local Police to disguise their true nature (which is sometimes to attack their neighboring tribes or communities). But U.S. Special Forces have monitored and worked with the actual ALP forces effectively and stepped in to address problems when needed. They only allow the formation of ALP units after several months of getting to know an area and working with local elders to try to ensure a reasonable mix of ALP members. The admittedly daunting challenge in coming months and years will be to keep growing the program while also handing oversight gradually to Afghan special-operations forces.

Each of the above areas of progress with the Afghan security forces also underscores the fragility of the situation. While Afghan forces are much bigger and better than before, they are nowhere near good enough, so professionalism and discipline must not only be maintained, but improved. While a large number of incompetent or corrupt leaders within the security forces' ranks have been replaced, many remain -- and under the present government, uniformed leaders and ministers of interior and defense only have so much power to replace poor leaders on their own, given the political interests still at play in many appointments.

The ALP can only be effective in the future if Afghanistan's own special forces are increasingly able to play the oversight role that NATO has provided to date. This clearly assumes a level of competence and integrity within the Afghan special-operations forces that will not survive poor national leadership, should the wrong person wind up in charge after Karzai. The wrong president could also generate ethnic tensions that could fracture the overall security force.

If we examine the other efforts to reduce corruption and the influence of patronage networks within Afghanistan, we reach a similar conclusion -- real and sometimes substantial, but uneven and insufficient, progress that by itself is neither adequate nor self-sustaining. This was apparent in discussions with Task Force-Shafafiyat (a legacy of Gen. David Petraeus and Brig. Gen. H.R. McMaster, as well as Task Force 2010), which seeks to reduce corruption in how NATO administers its contracts with Afghans, as well as with Americans and other foreigners. Again, the importance of future political leadership will be crucial. Consider the magnitude and complexity of the problems:

  • Counternarcotics courts and prosecutors, by contrast, are pretty good. Lots of big fish have been going to jail, including recently the second-biggest drug trafficker in Nimruz province.
  • But the Attorney General's Office and the High Office of Oversight and Anti-Corruption within the Afghan government remain disappointments.
  • Overall the court system in Afghanistan remains poor, with inadequate resources and far too much bribery and favoritism.

More happily, at least one Afghan Supreme Court judge and others are pushing general judicial reform at long last. This is resulting in the firing of 200 to 300 judges a year (which may be a touch worrisome given that only 125 judges are being trained or graduated each year). But on balance the judiciary is still very problematic, weak, and underresourced -- and reforms are making it smaller rather than larger in the short term, due to all the firings, however necessary.

Personnel changes in the Defense Ministry and Interior Ministry are generally encouraging, and the Defense Ministry's inspector general is well regarded. Yet some big problems remain within these organizations, of course -- notably, the Border Police and the Air Force still suffer from the influence of strong criminal patronage networks.

Crucially, NATO is belatedly cleaning up its own act, no longer unwittingly funding nearly as many corrupt actors or insurgent groups as it did before. Task Force 2010, the ISAF organization designed to increase transparency and accountability in how NATO awards contracts for logistics services and related activities in Afghanistan, is finally gaining steam. More than 100 companies or individuals have now been barred from ISAF contracting. Transparency requirements make it easier to check on who is involved in these companies, and lots more intelligence is being devoted to the problem. It often takes a couple of months to develop good intelligence on new companies, so when they reorganize or rename themselves, they can sometimes evade notice for a short time. But overall this set of problems is getting serious attention.

Incredibly, only recently has U.S. legislation been passed that finally allows the United States to break contracts with companies when they are linked directly to the enemy. Until now, the country couldn't do that unless it had other reasons too! Under U.S. law, apparently, it was seen as a worse sin to fill out paperwork wrong than to be a member of the Taliban, until only recently. More than 10 percent cost savings have been achieved to date, normalized for the relevant workload, by the reforms in contracting. More important than simply saving money is that this is a promising indicator of fewer funds being diverted to malevolent actors who skim off the top of contracts.

Unfortunately, there are many areas of the anti-corruption struggle where we are only beginning to scratch the surface at best. For example, no one whom I spoke with on my recent trip claimed progress on land reform -- protecting private property and also regularizing the way public lands are developed. The only good news I heard on that front was one former minister saying that, in general, the blatant expropriations of land for the personal gain of well-placed political actors occur only on public property (though because so many lands in Afghanistan are public, and so many of those are already used by subsistence farmers, this is of little solace). So again, this whole set of efforts clearly still has its major limits even among its most passionate proponents.

The 2014 question: Beyond specific reforms that might be made in the next two years, what was clear from my conversations in Afghanistan this May was that what we need most is a way to influence the 2014 political transition.

The core element of this strategy is to make sure Afghans know, beyond any doubt, that U.S. willingness to support them financially, developmentally, and militarily after 2014 will be a function of the quality of their governance and the character of their leaders. It is inconceivable that the U.S. Congress will sustain up to 20,000 troops in Afghanistan at a cost of perhaps $25 billion a year, and add another $3 billion to $5 billion annually in direct security and economic support to the Afghan government and people, if the next Afghan government is corrupt beyond hope.

If that were to happen, I am confident that the U.S. commitment would be scaled back dramatically -- to levels of assistance perhaps one-third to one-fifth the amounts sketched out above, or even less. That would be regrettable.

Some Afghan reformists want us to state a clear preference soon for who the next president of their country should be and promise to cut off all aid to anyone else who might win the election. Such an approach by the United States and other key foreign countries is highly unlikely, as it would constitute excessive meddling in the internal affairs of a sovereign state. Not only that, we would quite possibly choose wrong. But what is certainly within our means is to signal that good Afghan leadership will inspire much greater outside confidence and related willingness to stay engaged -- whereas the opposite will invalidate the premise for the current hopeful talk about our long-term commitment to Afghanistan. Strategic Partnership Agreement or not, major cooperation and financial help will not be provided to a criminally corrupt or malicious regime. We should probably also be willing to say, by name if necessary, who the unacceptable leaders would be, if they choose to run for president. This could be done privately at first, perhaps, and publicly if necessary.

No formal or binding promise is possible; Americans don't yet even know who will run their own government come 2014, 2015, and beyond. But a coordinated message by current congressional leadership of both parties -- and by President Barack Obama and Republican presidential candidate Mitt Romney -- could help a great deal and achieve much of the desired effect. If it is too soon to generate this kind of coordinated message now, policymakers should think now about doing so soon after America's own November elections. There is still a little time to sort this matter out, though not that much.

Many Afghans think that U.S. interest in their country is so great -- whether for military bases for operations in broader South and Central Asia or some other nefarious purpose -- that the United States would never scale back its commitment to their country. That view is bunk and fails to account for America's war weariness with the Afghanistan conflict as well as its greater hopefulness that, with al Qaeda central on the ropes, the future of Afghanistan is slightly less crucial to U.S. security than it might have seemed a decade ago.

On the other hand, many Afghans think the United States will desert them anyway, regardless of what they do. That view fails to recognize what the country learned by its premature and precipitous withdrawal from the region a quarter-century ago, together with its lingering worries about the possibility that some part of al Qaeda might indeed seek future sanctuary on Afghan territory. After so much investment of American blood and treasure, it is clear that the United States will not simply abandon the effort. And though it favors and hopes for a serious effort at peace talks with at least some elements of the Taliban, it will not desert a future Afghan government simply because such talks might fail.

Finally, some Afghans seem to think that the United States actually enjoys quarreling with Karzai, since it often seems that way. In fact, while U.S. strategy toward the current Afghan government has not been steady or clearheaded at times, the history of the last 10 years underscores two dueling realities: that the United States wants very much to work constructively with Afghan political leadership, but that it is increasingly frustrated by the difficulty of doing so and no longer so confident that success is even possible.

The next Afghan leader has a chance to restore America's faith and the strength of its support. He has the chance to help forge the kind of enduring security partnership that America established over the years, through good times and bad, from Greece and Turkey to Jordan and Egypt to South Korea and Taiwan. America needs to find a way to signal this clearly and thereby persuade Afghans to work cohesively and doggedly to defeat the crooks and warlords who may seek to replace Hamid Karzai in two years and to elect a serious, competent, and non-corrupt new president. The fate of 13 years of effort, blood, sweat, tears, and treasure depends more than anything on how well such an effort can succeed.