Canada, one of the largest contributors of troops to the war in Afghanistan, is embroiled in a controversy over the treatment of prisoners captured by its army. Its policy has been to turn detainees over to the Afghans, whose prisons are not exactly run according to Amnesty International standards. Now the chief of the Canadian defense staff, Gen. Walter Natynczyk, has set off a political firestorm by admitting that a detainee who had been beaten in 2006 had initially been in Canadian custody -- something he had previously denied. "You continue to transfer prisoners to torture in the name of Canada," one Liberal parliamentarian told the Conservative government. "I think you stand indicted in the court of public opinion of turning a blind eye."
Prime Minister Stephen Harper and his ministers have professed outrage in response, but have only themselves to blame for following the policy established in 2002 of turning detainees over to the Afghans rather than to the United States. Afghanistan's prison and justice systems function at a pretty rudimentary level when they function at all. And they are run according to local norms, which would not find acceptance among enlightened liberals in Ottawa (or Washington). When the Afghans aren't being too harsh with detainees, they are often too lenient -- letting them go as a result of bribery or intimidation, or letting them run their own prisons.
Canada and other nations that contribute troops in Afghanistan are complicit in these abuses because they refuse to hold detainees for more than 96 hours. That means either letting detainees go or transferring them to Afghan custody. Neither option is good.
The United States alone among NATO nations has been detaining suspected terrorists longer than 96 hours but on a much smaller scale than in Iraq. We are holding roughly 700 detainees at the Bagram Theater Internment Facility; at the height of the surge in Iraq, the United States had more than 27,000 detainees in custody. That's a glaring disparity because Afghanistan is bigger than Iraq and has at least as many insurgents.
Most U.S. troops are bound by the same 96-hour restriction as the rest of the NATO command. The major exceptions are Special Operations Forces and Task Force Paladin, which works to combat improvised explosive devices. They operate under a separate U.S. mandate as part of Operation Enduring Freedom that allows them to detain suspects indefinitely. But they tend to take only top-tier offenders. Ordinary Taliban foot soldiers, or even mid-level facilitators, are either cut loose or turned over to the Afghans -- which often amounts to the same thing.
Gen. Stanley McChrystal's report, prepared in August, contained a scathing indictment of the Afghan detention system. It said that "hardened, committed Islamists are indiscriminately mixed with petty criminals and sex offenders, and they are using the opportunity to radicalize and indoctrinate them." Afghan prisons, the report said, have become "a sanctuary and base to conduct lethal operations," with "multiple national facilities . . . firmly under the control of the Taliban."
To address this problem, McChrystal created a task force to work on the Afghan correctional system, segregating hard-core terrorists from the rest of the prison population and generally bringing conditions up to the standards U.S. authorities achieved in Iraq after the Abu Ghraib scandal. That's a good idea, but it's insufficient.
As more U.S. troops roll into Afghanistan, they will conduct offensive operations that result in the capture of more Taliban over the next 18 months. That is not enough time to build Afghan courts and prisons and to train guards, judges and lawyers. Even in Iraq, the legal system has had trouble coping with all of the terrorists U.S. authorities have turned over during the past year. Some have been released and have gone on to commit fresh atrocities.
Such a situation, which exists on a much bigger scale in Afghanistan, is profoundly demoralizing to troops. If service members see a "catch and release" policy in effect, they are likely to either pull back or pull the trigger prematurely. Both possibilities are worrisome. The former means more enemy fighters on the loose; the latter sullies our troops' honor, denies them the intelligence gleaned from interrogations and leads the remaining Taliban to fight harder.
But if we try to solve this problem by pressing the Afghans to undertake widespread security detentions, we may create a fresh problem. We want the Afghan government to develop the rule of law, which means only imprisoning malefactors based on a high level of proof presented in open court. Successful counterinsurgency operations require locking up suspects based on a lower level of evidence -- often based on classified intelligence that would not be admissible in a civilian court. It would be better if U.S. and allied forces undertake these kinds of security detentions while the Afghans build their own civilian legal capacity.
That means the United States, Canada and other nations need to overcome their squeamishness about detentions. The Bagram facility has been expanded to handle more than 1,200 detainees. Further expansion is necessary. Even more important, the United States and other nations should opt out of the 96-hour restriction. This is easy to do by designating all our troops as participating in Operation Enduring Freedom as well as the NATO mission. Likewise, Canada and other nations could unilaterally give their troops more detention authority than NATO rules permit. That may be distasteful, but the alternative is worse, as the Canadians are discovering.
Max Boot, the Jeane J. Kirkpatrick senior fellow in national security studies at the Council on Foreign Relations.