independence of the U.S. review system. They feel abandoned by their own government after years
of failing and refusing to act or assist them.
Across the border in Pakistan, detainees’ families know little about their condition and nothing
about their eventual fate. For years, families have been waiting for news, their lives also in limbo.
They endure emotional, economic, and social burdens from the long absence of their loved ones, all
worsened by the restrictions the U.S. military imposes on communication. Sons grow up never
knowing their fathers. Mothers die without ever again seeing their sons. Wives strive to keep hope
that their husbands will someday return. Neither the United States nor Pakistan provides families
with any direct information regarding their relatives’ legal status, or the conditions under which they
could ever be released. Families blame the Pakistani government for failing to provide them with
urgently needed assistance and basic information—and for failing to defend the rights of their
citizens in U.S. detention. Families also denounce the United States as hypocritical, questioning why
it continues to detain their relatives in indefinite detention without charge or trial, while proclaiming
to champion human rights and the rule of law.
Critical to resolving the fate of these detainees are the repatriation negotiations between the U.S.
and Pakistani governments. Much like Afghan detainees in the past, TCN cases are reviewed every
six months not by a court but by an administrative, Detainee Review Board (DRB), staffed entirely by
U.S. military personnel. Any recommendation for transfer or release by the DRB is only the first step,
however. The receiving country and the United States must then complete what are often lengthy,
bureaucratic negotiations over the terms of repatriation.
Negotiations between the United States and Pakistan over detainees held at the DFIP have dragged
on for years. At the center lie humane treatment and security assurances. They guarantee that any
transferred detainee will be treated humanely by the Pakistani government, and that any potential
future threat the United States perceives detainees to pose is sufficiently mitigated.
The United States is under an obligation in international law, not to send an individual to a country
where they are at a real risk of torture. To fully comply with this obligation, the United States must
ensure that any humane treatment assurances sought from the Pakistani government effectively
protect the detainee against a real risk of torture. More than mere promises, these should include
concrete measures such as access to legal counsel, which will effectively address the record of
torture and detainee abuse in Pakistan.
The U.S. government is also seeking security assurances from Pakistan, to assuage fears detainees
might return to or join hostilities against the United States. The U.S. government must ensure that
the threat assessments are based on sufficient and credible evidence. It must avoid the reportedly
overstated fears of recidivism that have characterized threat assessments of Guantanamo Bay
detainees. Furthermore, due process flaws of the U.S. detention regime are particularly acute for
TCN detainees. Limited witness participation at DRBs denies detainees the possibility to present an
alternative narrative to the U.S. military’s evidence against them. In turn, this makes changing U.S.
threat perceptions virtually impossible. It should also be recognized that Pakistan has an extensive
legal framework and security apparatus. This can help address U.S. security concerns and reduce the
risk the United States perceives detainees to pose. Finally, the risk a detainee is believed to pose
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