This article originally appeared at The Nation on October 14, 2011.
Ten years after promising that human rights would be protected in Afghanistan, the UN High Commissioner for Human Rights has verified “systemic torture” by Afghan security forces trained and funded by the United States.
The UN report, described in a lead New York Times story on October 10, is triggering calls once again for enforcement of the so-called Leahy Law, passed in the 1990s, which prohibits any US funding, weapons or training to security force units in other countries committing gross human rights violations. A loophole in the Leahy Law, however, allows Secretary of State Hillary Clinton to waive the ban by issuing a finding that the Afghan government is taking remedial measures, including bringing responsible members of the torture units “to justice,” and that “all necessary corrective steps have been taken.”
No one in Congress has introduced language to expose and defund US assistance to human rights violators like the Afghan security forces, but the time may be approaching. The gravity of the UN report is stirring new concern in NATO countries and may make it impossible to continue routine evasions of the Leahy Law here.
Responding to the report, Tom Malinowski of Human Rights Watch told The Nation that the United States “should suspend any training or assistance to the Afghan security units implicated in this abuse until it’s clear that the government is taking remedial action, including by holding those responsible accountable.” Malinowski questioned whether secret CIA assistance to Afghanistan’s intelligence agency, the National Directorate of Security, will be included in any action taken by the administration. The prohibition, he said, “should be applied to any assistance provided to the NDS, whether it is coming through accounts technically governed by the Leahy amendment or not.”
A senior staff representative of Senator Leahy told The Nation that “we have been back and forth with the Pentagon about this for months.”
A more cynical view is that periodic efforts to end torture and implement human rights are a game of cosmetic necessity for Western governments stung by the Abu Ghraib scandal in Iraq and those who promised a new day for women's rights in a modern Afghanistan.
The United Nations, which officially authorized the Afghanistan military mission, is sensitive to claims that a regime of systemic torture has been the result. The new finding of systemic torture is a stinging new development, but the UN report still goes on to maintain that “reform is both possible and desired,” despite the voluminous evidence their investigators collected in the 2010-11 period. Top diplomats fret that the report might “undermine the strategic partnership” envisioned between Afghanistan, the European Union and the United States.”
A 2009 report by the UN's Assistance Mission in Afghanistan (UNAMA), “Arbitrary Detention in Afghanistan –- A Call for Action,” had virtually no impact on the internal organs of torture revealed in the current document. Of 379 detainees interviewed in the current study, UNAMA found a pattern and practice of torture including twisting of genitals, electric shock, beatings with rubber hoses, clubs and cables, ripping out of toenails, blindfolding, hanging from the wrists, forced standing--an entire repertoire of standard torture techniques in violation of the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The patterns often seem purely sadistic, not attempts to gather actual information: “…it was not necessarily inflicted with the primary purpose of acquiring a particular piece of information during the beating itself.”
The physical terror is accompanied by a denial of the human rights standards required by international law and treaties, all signed by the Afghan government. In one of many telling examples, an NDS official stated this view of the right of detainees to defense counsel: “Of course not! Lawyers have no access to the facility during the pre-trial detention; this is one of NDS’ principles…. Lawyers can influence their clients and compromise the investigation. If we allow lawyers to interact with our detainees they will damage our work. Interrogation of the arrested person must be performed in the absence of any external person.” Only one of the 324 conflict-related detainees interviewed said they had defense counsel.
In almost all criminal cases, the report notes, the case against a defendant is based on a confession “which the court usually finds both persuasive and conclusive of the defendant’s guilt…[often] confessions are the sole form of evidence.… Confessions are rarely examined at trial and rarely challenged.” The list of possible offenses under Afghanistan’s “Law on Crimes against Internal and External Security” include treason, sabotage, terrorism and “propaganda against the government.”
The report confirms that most if not all the funding for the NDS comes from international sources. The NDS is a secret agency whose payroll is estimated at 15,000-30,000. The agency operates without any judicial oversight.
Between 2009 and 2010 alone, the United States, Canada, Britain and other Western militaries transferred some 2,000 individuals to the Afghan detention system. Public pressure and court rulings in Canada and Britain led to a suspension of many of those transfers and implemented certain monitoring programs. But the new report says on page 39 that the United States “has not yet put in place a monitoring program to track detainees it hands over to Afghan authorities,” though such a program was ordered by President Obama in January 2009.
There are troubling questions the UN report never touches. With US leverage waning as 33,000 troops prepare to leave Afghanistan in the next year, what reason is there to believe that any human rights safeguards will be left behind? Or has the outsourcing of torture been a way to protect funding, keep human rights groups at bay and protect the US image after Abu Ghraib? Is this what remains of the concept of humanitarian intervention?