I recently attended proceedings for a dozen detainees who were being held by the National Directorate of Security (“NDS”) for charges relating to national security. This was a special proceeding for detainees accused of crimes against national security that, for security reasons, cannot be held at the main court building; instead the proceedings were held as part of a “mobile court.” According to the Law on the Organization and Authority of the Courts, the term “mobile court” or “travelling court” is used for those courts that may be established when needed, on recommendation of the Supreme Court and approval of the President. The judicial team consisted of National/Public Security Division and head of the 4th zone primary court.
Every case was directly related to alleged Taliban or insurgent activity, with the exception of one kidnapping case in which one of the kidnappers had a known allegiance to the Hezb-e-islami and Gulbuddin Hekmatyar. Kidnapping cases are also generally handled by the NDS.
Pre-Trial Detentions Can Last for Weeks, Months, or Even a Year
All of the individuals appearing before the court were being held as part of a pre-trial detention process. During the proceeding, similar to an arraignment, a defendant is read the formal charges against him and can plead guilty or not guilty. In Afghanistan, after an arrest, according to the Interim Criminal Procedure Code, the person arrested shall be interrogated within 48 to 72 hours, but the detainee can be held for up to one month until his indictment is presented to court. However, according to the government, in the interest of national security, the hearings for the NDS detainees do not follow the requirements of the Interim Criminal Procedure Code. The U.S. government uses the same rationale to justify a parallel system for the treatment of detainees, such as those held at Guantanamo Bay, who are deemed to be “enemy combatants,” defined as such pursuant to Presidential Military Order entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” signed into law by President George W. Bush in November 2001. Although President Obama’s administration has moved away from using the term “enemy combatants,” the U.S. continues to deny due process rights to detainees accused of affiliations with al Qaeda or the Taliban, many of whom are held at Guantanamo Bay or a Bagram prison in Afghanistan. Ironically, the section of the prison where many of the accused are detained is known as Guantanamo.
For some of the detainees, this was obviously not their first proceeding, and they had already pleaded guilty or not guilty. Only two detainees pleaded guilty and their pleas were not enough to issue a verdict because all of their co-defendants were not present. In general, a detainee can appear before a judge for even up to five sessions or more before a verdict is rendered, depending on the availability of evidence, legal counsel, or co-defendants. Hearings of the mobile court for crimes against national security are only held approximately once a week. As a result, the practice of bringing a defendant before a judge repeatedly often results in indefinite detentions that can exceed a month or even more, depending on the circumstance.
In reality, most NDS detainees are held in detention for much longer than 48 hours, often for weeks, months, or even a year. This is especially true because the mobile court hearings for NDS detainees are held less frequently, approximately once a week. For example, at the proceedings I attended, due to an uncertain security situation in the wake of the Kandahar prison break just weeks before, many prisoners slated to appear before the court could not be brought from Pul-e-Charkhi, the second largest prison in the world based on the outskirts of Kabul where several of the detainees were being held in a special section. I could not estimate when it would be deemed safe enough for these detainees to travel from Pul-e-Charkhi to Kabul for their hearings.
Joinder of Multiple Defendants
Two of the detainees in the kidnapping case pleaded guilty, but because all of their co-defendants were not present, a final decision was not rendered. The question of multiple defendants being tried jointly is an important due process issue but one that is relatively underdeveloped. Across the world, prosecutors generally prefer joinder of multiple defendants, arguing the following: (1) trial efficiency of presenting the evidence and witnesses once, (2) the risk of inconsistent jury verdicts on the same evidence presented at multiple trials with different juries, and (3) juries should be trusted to follow the judge’s instructions to segregate the evidence against each defendant. When severance is granted, however, it can also create unfair advantages to those defendants whose cases are tried later, as they can see the prosecution’s case in advance of their trials.
Although international treaties do not directly address the issue of multiple defendants, they do uniformly recognize a defendant’s right to prompt legal assistance of the defendant’s own choosing and confidentiality between a defendant and counsel.,, A number of international documents also grant the right to confidentiality between an accused and the lawyer and even address the need to avoid conflicts of interest.,,,,,,
 Article 8(2)(d) of the American Convention on Human Rights (granting the accused the right “to communicate freely and privately with his counsel”)
 Rule 93 of the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners (“For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions.”)
 The Standard Minimum Rules for the Treatment of Prisoners, adopted by the Committee of Ministers of the Council of Europe by resolution (73)5 (granting the accused legal aid and the ability to communicate in confidence with his attorney)
 Article 13 of the ICTY’s Code of Professional Conduct for Counsel Appearing Before the International Tribunal (“Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client’s affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client’s detriment or to his own or another client’s advantage.”)
 Article 14 of the ICTY’s Code of Professional Conduct for Counsel Appearing Before the International Tribunal (prohibiting representation of a client if that client or another client may be adversely affected by such representation)
 Article 8 of ICTR’s Code of Professional Conduct for Defence Counsel (“Counsel must preserve the confidentiality of his client's affairs and … must not reveal to any other person … information which has been entrusted to him in confidence or use such information to his client's detriment or to his own or another client's advantage.”)
 Article 9 of ICTR’s Code of Professional Conduct for Defence Counsel (precluding any representation that would be likely to “adversely affect” his client’s case)