To many Afghan and international human rights advocates, the central problem is that the Americans are detaining Afghan citizens but depriving them of the right to have their cases processed under Afghan law.

“The U.S. needs to establish a very clear legal basis for why they are holding Afghan citizens on Afghan soil, and right now there is no clear agreement between the two countries that gives the U.S. that right,” said Sahr Muhammed Ally, a lawyer with Human Rights First, a New York-based group, who has studied detention arrangements in Afghanistan and at Guantánamo Bay, Cuba.

General Martins acknowledged that as soon as possible most detainees should go into the Afghan criminal justice system, where they would be charged and tried or released for lack of evidence, but he said that in a continuing armed conflict it is not always possible to try people.

“There is a category of cases,” he said, “where you don’t have evidence to convict someone in court, but you do have intelligence that if you brought into open court it could hurt you in the armed conflict. Those are the hard cases.”

In the meantime, the goal is for the detainee review boards, which are made up of three American officers advised by a military lawyer, to improve the administrative review process for detainees. In the past, boards sometimes saw the detainees only once and renewed their detention repeatedly based on a paper record.

In Iraq, by comparison, when detainee review boards were put in place in 2007, release rates rose drastically, according to Maj. Gen. Douglas Stone, who ran the detention system at the time.

Image The new facility is on the edge of Bagram Air Base. Credit... The New York Times

The system at the new Afghan detention center has some elements that were not present in Iraq, including assigning each detainee a personal representative who will advocate on his behalf. The representatives are not lawyers  a point of contention for human rights groups  but they will explain the administrative review process to detainees and are supposed to help gather any “reasonably available” evidence that detainees wish to use to challenge their detention.