The Pakistani military is holding thousands of suspected militants in indefinite detention, arguing that the nation's dysfunctional civilian justice system cannot be trusted to prevent them from walking free, according to U.S. and Pakistani officials.
The majority of the detainees have been held for nearly a year and have been allowed no contact with family members, lawyers or humanitarian groups, the Pakistani officials and human rights advocates said.
Top U.S. officials have raised concern over the detentions with the Pakistani leadership, fearing the issue could undermine American domestic and congressional support for the U.S.-backed counterinsurgency campaign here and jeopardize billions of dollars in U.S. assistance.
Pakistani officials say they are aware of the problem, but that there is no clear solution: Pakistan has no applicable military justice system, and even civilian officials concede their courts are not up to the task of handling such a large volume of complex terrorism cases. For most of the detainees, there is little forensic evidence, and witnesses are likely to be too scared to testify.
Dilemma plays into Taliban strategy
The dilemma plays directly into the Taliban's strategy. The group has gained a following in Pakistan by capitalizing on the weakness of the civilian government, promising the sort of swift justice that is often absent from the slow-moving and overburdened courts.
Pakistan's struggle over how to handle the detainees echoes a debate playing out in the United States over the remaining prisoners being held at the U.S. detention facility in Guantanamo Bay, Cuba. It also reflects the tensions between security and civil liberties that confront U.S. allies as they fight their own battles against Islamic extremists.
"We don't have a system like Egypt, where you send a man to court and three days later he's executed," said Malik Naveed Khan, the top police official in northwestern Pakistan. "The judges decide the punishment, and they have to look at the evidence."
Military spokesman Maj. Gen. Athar Abbas said the military is "extremely concerned" the detainees will be allowed to go free if they are turned over to the civilian government. More than 300 suspected militants who had been detained in the military's 2007 operation in the Swat Valley were later released under the terms of a peace deal. Many subsequently returned to the Taliban, Abbas said, making the army's task harder when it again rolled into Swat last spring.
Most of the current detainees were picked up during that operation, which succeeded in eliminating a key Taliban sanctuary, though many fighters simply fled. Pakistan also detained suspected militants during its offensive in South Waziristan last fall, and in other operations in adjacent tribal areas.
Earlier this month, Human Rights Watch said it had documented as many as 300 extrajudicial killings by the military both during and after the Swat operation. The military has denied that charge. Ali Dayan Hasan, the New York-based organization's senior South Asia analyst, said that without proper documentation of the detainees, more could be tortured and killed.
"What this is an argument for is the law of the jungle," Hasan said. "This is a gross abuse of human rights, and very bad counter-terror strategy."
Exact number of prisoners unknown
There has been no public accounting of who has been detained, so the exact number of prisoners is not known. U.S. officials estimate the total at 2,500, a figure that roughly corresponds to Pakistani estimates, though some outside analysts here say the actual number is higher. The International Committee of the Red Cross has not been given access to any detainees in northwest Pakistan since last year. They are being held in special military detention centers across the region, though the exact locations have not been made public.
Pakistan officially describes its military operations in the northwest as a law enforcement action, rather than armed conflict, which permits it to avoid following international protocol for the treatment of prisoners of war.
U.S. officials say they worry the detentions will further inflame the Pakistani public at a time when the government here needs popular support for its offensives.
"They're treating the local population with a heavy hand, and they're alienating them," said an Obama administration official who spoke on the condition of anonymity because of the sensitivity of the issue. "As a result, it's sort of a classic case going back to Vietnam; it [risks] actually creating more sympathy for the extremists."
After years of international criticism over secret U.S. prison sites, the official said that U.S. Gen. Stanley McChrystal has made improving the detention system one of the central features of his new counterinsurgency strategy in Afghanistan. But Pakistan, where the military has long called the shots while the civilian government languished, has not yet recognized the issue's importance, the official said.
U.S. officials worry, too, that by holding thousands of people without trial, Pakistan risks running afoul of the Leahy Amendment, which requires recipients of U.S. military assistance to abide by international human rights laws and standards.
The United States has provided Pakistan with nearly $18 billion in military and development aid since 2002, with the administration requesting an additional $3 billion for 2011. "Obviously, you don't want the Pakistanis to do anything to complicate a relationship that requires support from Congress," the U.S. official said.
Issue raised by Clinton
Secretary of State Hillary Rodham Clinton raised the issue of detentions with Pakistani officials during her visit here last October, but little has changed since then.
The United States has not pushed for a specific solution but has instead encouraged Pakistan to begin a process for handling the detainees within the law, U.S. officials said. Although Pakistan has in the past handed high-level detainees over to the United States for interrogation at Guantanamo Bay and other facilities, Pakistani officials say the current crop of detainees are all suspected of crimes against the Pakistani state and will be dealt with domestically.
Pakistani security officials said the detainees were overwhelmingly Pakistani citizens but did include some foreigners, including Uzbeks, Chechens and Arabs. Both the Taliban and al-Qaeda have used Pakistan's remote western border with Afghanistan as a sanctuary in recent years.
Some detainees are considered leading insurgent commanders, while the vast majority are foot soldiers. The men are being questioned by investigators, and are classified into one of three categories: black for hard-core militants, gray for their supporters and white for civilians not involved in the insurgency, said Khan, the police chief for northwestern Pakistan. Those in the latter category are released as the investigations proceed, officials say.
Aftab Khan Sherpao, a former Pakistani interior minister, said the lack of a plan for handling the detainees reflects Pakistan's broader deficiencies when it comes to fighting extremist groups. There is no coordination between military and civilian agencies, he said, and no system for collecting and sharing evidence. "Without evidence, what are they going to do?" he said.
In many cases, the answer is for the police to torture detainees into confessing, said Rafaqat Bashir Awan, a defense lawyer at the anti-terrorism court in Rawalpindi.
Khan, the police chief for northwestern Pakistan, said his force lacks microscopes, facilities for analyzing DNA and other technology essential to modern law enforcement. He said he has asked for U.S. assistance but has not been given an answer.
Ultimately, he said, he expects the detainees to be tried in civilian courts -- he just doesn't know when. "I don't see any other option," he said. "But it will take time."
DeYoung reported from Islamabad and Washington.