AAN has followed the travails of the Afghans held by the United States at its prison camp at Guantanamo Bay on the island of Cuba for over a decade, prompted first by the cases of the five Taleban who were released in exchange for US serviceman Bowe Bergdahl in 2014, and later focussing on the last eight Afghans held there. This dossier is published as the very last Afghan at Guantanamo, Muhammad Rahim, awaits the latest decision of the Periodic Review Board, the body which reviews detentions in Guantanamo – to find out if it has decided to keep him locked up or release him. Rahim, picked up by the Pakistani intelligence agency, the ISI, in 2007 and handed over to the CIA, which tortured him at a black site in Afghanistan before rendering him to Guantanamo, is also the last known person to have been taken to the prison camp. This dossier, compiled by AAN senior analyst, Kate Clark, brings together all our reports from 2012 to 2023.US soldiers body-search a man after stopping his vehicle which had picked up a load of wheat at the Pakistani border, Wazakhwa district, Paktika Province. Photo: Robert Nickelsberg/Getty Images, 13 September 2004.
I first delved into the labyrinthine world of Guantanamo in 2012 when it emerged that the United States and the Taleban were negotiating the release of Bowe Bergdahl in exchange for five senior Taleban held by the US. Newspaper reports detailing the backgrounds and alleged crimes of the five were full of gross factual errors, and some mystifying claims. I had lived in Afghanistan during the first Islamic Emirate and knew that some of the war crimes attributed to these individuals could not have been committed by them. The sources for the media stories and of the errors were statements given by un-named US spokespeople, files held on the men and documents from military reviews. The Taleban’s capture of Mazar-e Sharif, for example, was said in a military review transcript to have taken place in 1996 (the city was captured and lost in 1997 before finally being captured in 1998). There were bungled transliterations of even famous Afghan figures – ‘Mohacake’ (‘hot from the bakers’?) is how Hezb-e Wahdat’s northern leader, Muhammad Mohaqeq, was rendered. Whatever one thought of the Taleban, their emirate, or the Guantanamo detention regime, it seemed of fundamental importance to get some correct facts about these individuals into the public domain.
AAN published two reports on the five Talebs whose release was being negotiated in exchange for Bergdahl. The first was a collection of their biographies, which included assessing the accusations of the war crimes published by the media. The second scrutinised the nature of the evidence and the allegations, characterising them as “peculiar, opaquely sourced and peppered with factual errors.” These reports argued that the media could not simply report allegations made by the US about detainees in Guantanamo without scrutiny: they were simply not credible, unless there was independent sourcing.
Bergdahl was eventually freed in 2014, and the five Taleban were also released, inside Afghanistan near the Pakistan border, from where they disappeared, presumably having headed eastwards.
During this period, I was also closely following the efforts of then President Hamed Karzai to get control of the Afghans who, along with some foreigners, had been interned by the US as security detainees (ie without trial or recourse to Afghan criminal law) in Afghanistan, primarily at the US military base at Bagram. As 2014 and the handover of security responsibility from NATO to the Afghan government approached, America’s rationale for detaining these men lessened and, after a long and rancorous struggle, it agreed to hand the Afghan detainees over to Afghan custody and transferred most of the foreigners to their home or third countries. The US closed its Bagram Detention Facility on 11 December 2014.
The lack of a legal regime underpinning US detentions in Afghanistan and its extremely secretive nature had made the detentions open to abuse and miscarriages of justice from the start. Once the detainees were in Afghan custody, they became subject to domestic criminal law, and had to be charged and convicted in a court of law or released. Details about this period can be read in reports collected in an earlier dossier, ‘Thematic Dossier VII: Detentions in Afghanistan – Bagram, Transfer and Torture’, published in December 2014. The dossier also documented the use of torture by the then Afghan intelligence service, the NDS, against security detainees and the efforts to stop that practice, and some reports about torture at CIA black sites.
By the time I again looked into Guantanamo – publishing a substantial report in 2016 – just eight out of the 225 Afghans rendered to the camp, remained there (three had died and the rest been returned home). The fate of these eight men was far more difficult than those in Bagram had been, as they were completely beyond the reach of Afghan jurisdiction or any possibility of arguing their cases in a court of law.
The eight men’s files, many of which had been leaked and published by Wikileaks, as well as some documents from Guantanamo reviews and habeas petitions, revealed the same sorts of outlandish errors and accusations present in the files of the five Taleban detainees. Yet, unlike the five, these eight men appeared relatively, or completely, unimportant. Neither intelligence nor risk appeared to explain why the US had rendered them to its highest security detention camp, let alone continued to hold them. None had been detained on the battlefield. All were informed on and detained by the US military, or handed over by Pakistan or the NDS, in murky situations. In trying to make sense of why they were detained, it was usually more worthwhile to look at who had informed on them or handed them over, as personal or factional rivalries or money (the US paid for tip-offs) typically made more sense than the vague and garbled rationales to be found in the US files on them.
President George W Bush had ordered the detention camp to be located outside mainland America to avoid it coming under the jurisdiction of the US courts. The legal regime at Guantanamo was therefore established outside both the US criminal justice system and the Geneva Conventions. Detainees, some of whom were tortured – a practice also authorised by Bush – were held initially in complete secrecy, without families being informed. It took dedicated work and multiple Freedom of Information requests before even their names were published (by the Associated Press news agency in 2006). Eventually, however, the American courts did rule that the detainees were protected by the most basic legal rights, to habeas corpus, when a state has to justify its detention of an individual to a court, or release them, and by the protections found in common article 3 of the Geneva Conventions. Then, came the re-erosion of those rights as the US courts failed to stand up to the US government’s assertion of its right to detain men at Guantanamo: a study by Seton Hall University School of Law found that “[c]areful judicial fact-finding” in habeas cases had been “replaced by judicial deference to the government’s allegations,” with the “government winning every petition.”
The Kafka in Cuba dossier
This dossier begins by showcasing two special reports, both substantial pieces of research. The first,
‘Kafka in Cuba: The Afghan Experience in Guantanamo’ published in 2016, traces how Afghans came to be the largest national group rendered to Guantanamo. The US military’s policy of carrying out mass arbitrary detentions of those accused of being ‘Taleban’ or ‘al-Qaeda’, based on the flimsiest justification and with little knowledge of Afghanistan, led to unknown numbers of Afghans being detained. The vast majority were held in Forward Operating Bases or at Bagram. Those rendered to Guantanamo were the unlucky tip of a very large iceberg. They were a mixed group: possibly a third were Taleban, but the rest included shepherds, taxi drivers, shopkeepers, old men with dementia, sexually abused boys, anti-Taleban activists and tribal elders.
The 2016 report also traces the development of the peculiar legal regime that the Bush administration created for the camp and the outlandish nature of the ‘evidence’ against the last eight Afghan detainees held there – hearsay, testimony obtained under duress or torture and unverified intelligence reports. It examines the cases of the last eight Afghan detainees in detail and uncovers vague and bizarre accusations, gross factual errors and contradictions, all cloaked in secrecy. None of the eight ever had the cases against them properly scrutinised, for example, in a court of law.
The second special report, ‘Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo’ was published in 2021. It looked at how the eight men had fared: six men had been released and transferred to the Gulf in the last months, indeed days, of the second Obama presidency; two were living freely in Oman, but the other four had gone into fresh, and even more secretive, detention in the UAE. The report also scrutinised the continuing efforts of the last two Afghan detainees to get their freedom and asked why two presidents committed to closing Guantanamo, Barak Obama and Joe Biden, had continued to insist that those seeking release through habeas petitions in the courts must stay in detention. The evidence suggested that the US state could not admit that its detention of people in Guantanamo, outside any legal regime, had been wrong from the start.
The second part of this dossier lists shorter reports on Guantanamo in chronological order (most recent first). The twists and turns in the fates of the eight men are traced – for some, there have been secondary detentions and eventual homecomings. There have been unsuccessful rulings by the Periodic Review Board and attempts to find freedom through habeas petitions. For one man only, Asadullah Harun Gul – a member of Hezb-e Islami, who was still in detention years after his leader, Gulbuddin Hekmatyar, had signed a US-supported peace deal with the Ashraf Ghani government – there was a ‘rare as hens’ teeth’ successful petition for habeas corpus.
In this second part of the dossier, there is a report about detainees’ artwork, including by Harun Gul. Son of a landlocked nation, he nevertheless painted the sea while in Guantanamo, as well as, repeatedly, his daughter, whom he had not seen since she was an infant. Another report related the only partial holding to account of those behind the US’s rendition and torture regime, a civil case where the two psychologists who conceived the CIA’s torture programme paid out millions of dollars in compensation to two survivors, who went on to be held in Guantanamo, and the family of an Afghan killed at Bagram in 2002, Gul Rahman.
Here, can also be found our analysis of the first visit by an independent United Nations investigator to the camp: Special Rapporteur Fionnuala Ní Aoláin’s lacerating report, published in 2023, detailed the arbitrariness and abuse that characterises life in Guantanamo, the “horrors and harms” done to the hundreds of Muslim men and boys who were rendered there following the 9/11 attacks. “Without accountability,” Ní Aoláin, wrote, “there is no moving forward on Guantánamo.” For more on the continuing lack of accountability, a factor which lead the former Chief Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, to seek an investigation into the alleged war crimes of the CIA and US military (along with those of the former Afghan government forces, the Taleban and ISKP), see AAN’s dossier on the ICC, ‘Thematic Dossier XVI: Afghanistan’s War Crimes Amnesty and the International Criminal Court’, published on 7 October 2017. Later reports on the AAN website have continued to trace the painfully slow developments in the ICC’s work on Afghanistan – now, almost two decades long.
‘Kafkaesque’ is an overused adjective, but absolutely fitting to describe the detention regime at Guantanamo. The experiences of the last eight Afghans held there are only too reminiscent of the protagonist in Franz Kafka’s 1914 novel, ‘The Trial’, who is arrested and prosecuted by a distant, inaccessible authority for a crime which neither he nor the reader is ever told of. In the latest Kafkaesque twist to this tale, the US has insisted in response to Muhammad Rahim’s habeas petition that its detention of the last Afghan at Guantanamo, is necessary. It is now more than two years since President Biden withdrew the last US troops from Kabul, and yet, for the purposes of justifying Rahim’s detention, the US government continues to assert in court that the war is not over.
1 Kafka in Cuba The Afghan Experience in Guantánamo
3 November 2016
A major new report from AAN’s Kate Clark looks at the Afghan experience in Guantanamo, where a quarter of the total number of detainees held were Afghan, the largest national group. The report takes a ‘deep dive’ into the cases of eight of the longest-serving Afghan detainees. Five are still in Cuba, while three were transferred to the United Arab Emirates in August where they are believed still to be in some form of detention. None of the eight were picked up on the battlefield, so accusations are based on intelligence. Yet, the report finds many of the allegations against them are both vague and far-fetched, with accusations based on hearsay, testimony obtained under torture or duress, and unverified intelligence reports.
2 Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo
19 April 2021
As newly-elected United States President Joe Biden considers what to do with the almost two-decades-old ‘war on terror’ detention facility at Guantanamo Bay in Cuba, we publish a special report on the last Afghans held there. Two Nangraharis, Asadullah Harun Gul and Muhammad Rahim, have both been detained since 2007. We also trace the fates of six other Afghans released from Guantanamo in 2016/2017 and sent not to Afghanistan, but to the Gulf. They are either still stranded there, or endured more years of indefinite detention before finally being allowed to come home. Biden has said his goal is to close the camp, but how to deal with this toxic inheritance? A new report by AAN’s Kate Clark aims to provide context to the new administration as it weighs up what to do with Guantanamo by injecting a dose of reality into discussions.
See also the accompanying short report: ‘American politics grounded in fear, ignorance and fantasy: New special report on Afghans in Guantanamo, as US prepares to withdraw troops’
President Joe Biden has announced that American troops will leave Afghanistan before 11 September 2021, a day that will mark twenty years since al-Qaeda attacked the United States and drew US forces to Afghanistan. Another anniversary is also looming: it will soon be twenty years since President George Bush opened the Guantanamo Bay detention camp to house America’s ‘war on terror’ detainees. Afghans were the largest national group to be held there. Two, Harun Gul and Muhammed Rahim, both from Nangrahar, remain in indefinite detention. Today, AAN launches a special report looking at the fate of Afghans in Guantanamo, as Biden muses on what to do with the camp. Its publication is timely, writes the author Kate Clark, given that so much of what was wrong about the renditions to Guantanamo reflects the failings of the US intervention as a whole.
Shorter reports, 2012-2023
1 The Last Afghan in Guantanamo: Pressure mounts on US to deal with the remnants of its ‘War on Terror’
13 August 2023
It is more than three years since the United States signed its peace deal with the Taleban and almost two since the last American soldier left Afghanistan. Yet the US still insists that the last Afghan it holds in relation to that war – at its prison camp in Guantanamo – would be a threat to its national security if freed. Muhammad Rahim from Nangrahar, held by the US since 2007 and tortured at a CIA black site, awaits his latest Periodic Review Board hearing, when US officials will decide to release him or keep him detained. During the Donald Trump presidency, the Board authorised just one detainee for release, but since Joe Biden took office, it has cleared more than a dozen detainees for transfer, raising hopes for Rahim, especially as he now has a lawyer in Guantanamo for the first time. Possibly, this time, he will also have a Pashto rather than an Arabic translator. Meanwhile, writes Kate Clark, a lacerating report by the first independent United Nations investigator to visit the camp has detailed the arbitrariness and abuse that characterises life in Guantanamo, and how the resulting harm continues to affect former inmates, of whom the largest national group are Afghans.
2 Free at Last: The Afghan, Harun Gul, is released from Guantanamo after 15 years
25 June 2022
One of the last two remaining Afghans held in Guantanamo Bay, Asadullah Harun Gul, has been released after his lawyers threatened the United States government with contempt of court. A judge had ruled in November 2021 that the government was holding him unlawfully and must release him. A month earlier, a review board at Guantanamo had also decided he posed no danger to the United States. As AAN’s Kate Clark who has followed his case for seven years reports, Harun will now be reunited with family members he has not seen for 15 years, including a daughter who was still in the womb when he was detained. His release leaves just one Afghan, Muhammad Rahim, left in Guantanamo, the last of the 225 Afghans rendered to the prison camp.
3 One Afghan wins in court, while other Guantanamo detainees remain ensnared in a rigged system
30 November 2021
A landmark court ruling, which saw a Guantanamo detainee successfully argue that his detention was unlawful for the first time in more than a decade, has now been published. The judge said that the United States no longer had the legal authority to detain Asadullah Harun Gul because his faction, Hezb-e Islami, “is at peace.” The group signed a peace deal with the Afghan government in 2016. However, the judge rejected a second petition arguing that Harun Gul should be released because America’s war in Afghanistan is now over. That, says AAN’s Kate Clark, will be disappointing for the other Afghan still detained in Guantanamo, Muhammad Rahim, as well as non-Afghans whose detention relates to the war in Afghanistan.
4 Landmark Judgement: US court finds detention of an Afghan in Guantanamo unlawful
24 October 2021
A United States court has ruled that the detention of Afghan Asadullah Harun Gul in Guantanamo is unlawful, the first time in ten years that anyone at Guantanamo has won such a petition. The ruling comes just days after the government cleared him for transfer out of the detention camp – as AAN’s Kate Clark reported on 18 October. The ruling sets an important precedent for the rights of Guantanamo detainees to habeas corpus, when the government is forced to justify its detention of an individual in a court of law. Here, Kate Clark presents an amended version of her earlier report. Even now, she says, after Harun Gul’s detention has been ruled unlawful, his release after 14 years of detention without trial is not inevitable. She also scrutinises the case of the other Afghan still in Guantanamo, Muhammad Rahim, the last person known to have been targeted in the CIA’s torture and rendition programme.
5 One of the two last Afghans in Guantanamo authorised for release, but when?
18 October 2021
The United States authorities have cleared the transfer of the Afghan national, Asadullah Harun Gul, out of Guantanamo after detaining him without trial for 14 years. It accused Harun of being a Hezb-e Islami commander who conducted attacks on coalition forces and liaised with al-Qaida but has never given him any meaningful opportunity to answer these claims. The reasons the US has given now for deciding now to clear him for transfer appear as arbitrary as his detention. Rather, the motivation, argues AAN’s Kate Clark, appears to be that the Biden administration is trying to get rid of any remaining detainees in Guantanamo it judges to be ‘small fry’. And even now, the matter of when, to where and indeed whether Harun will be allowed to leave is unclear.
6 Freed at Last: Three Afghans sent to Guantanamo in 2002 and 2003 are finally home
23 December 2019
Three Afghans, who were detained and rendered to the US detention camp in Guantanamo Bay in 2002 and 2003, and then transferred to the United Arab Emirates in 2016 and what turned out to be further incarceration, have been released. Obaidullah and Muhammed Karim from Khost and Hamidullah from Kabul have also been allowed to return home to Afghanistan and are now with their families. A fourth man, Wali Muhammed, is still in the UAE. The four men featured in a major 2016 AAN report on the experiences of Afghans in Guantanamo which looked at their cases in detail. It found the US allegations against them far-fetched and their files to be full of factual errors and gross misunderstandings. AAN’s Kate Clark has been following the latest developments (with input from Ali Mohammad Sabawoon).
7 A Son of Nangrahar Paints the Sea: Afghan artwork from Guantanamo
2 November 2017
As an art exhibition featuring the works of eight current and former Guantanamo detainees, Yemeni, Algerian, Pakistani and Kuwaiti, is now showing in New York, we thought we would look at the paintings and sculptures of an Afghan who is still in the prison camp, who is not featured in the exhibition. Assad (known in Guantanamo as Harun Gul) was captured in Afghanistan in 2007 and accused of being a Hezb-e Islami commander and courier for al-Qaeda. An earlier investigation into his case by AAN found the United States had presented no credible evidence to back up its claims. AAN’s Kate Clark has been looking at Assad’s artwork and speaking to his lawyer about the role of art for the detainees.
8 Held Accountable for Torture: CIA psychologists compensate family of dead Afghan
29 August 2017
A landmark case in the United States means that, for the first time, two of those responsible for the CIA’s post-2001 torture programme, have been held accountable in the courts. Much of this torture programme was carried out on Afghan soil. The two psychologists who designed and implemented the programme, have paid compensation to two survivors and to the family of Gul Rahman, an Afghan who died of hypothermia after being left semi-naked on a bare concrete floor in a CIA black site near Kabul in November 2002. US courts had thrown out previous attempts at litigation on the grounds of ‘national security’. As AAN’s Kate Clark reports, the successful case may open the door to other claims, including against government officials.
9 Waiting for Release: Will Afghans cleared to leave Guantanamo get out before Trump gets in?
14 January 2017
American president-elect Donald Trump has said that no more detainees should be transferred out of America’s war on terror detention camp in Guantanamo Bay. He takes office on 20 January 2017, which leaves the Obama administration just a few days to get men cleared for transfer out of Cuba. Among those waiting to see if their cases go through in time are three Afghans, money changer Wali Muhammed, chokidar Abdul Zahir and seller of plastic flowers Bostan Karim. All have been in detention since 2002 and, AAN’s Kate Clark reports, the cases against them were always among the flimsiest.
10 From Guantanamo to the UAE: A scrutiny of the three Afghan transfer cases
20 August 2016
Three of the eight remaining Afghans detained by the United States in Guantanamo have been transferred to the United Arab Emirates. The three had each spent 13 or 14 years in detention. None were captured on the battlefield, but detained after tip-offs or were handed over to the US by Afghan forces. Their files reveal multiple mistakes in intelligence, mistakes in Afghan geography and history, and cases largely made up variously of hearsay, secret evidence and confessions. One of the three was almost certainly tortured and another probably was. AAN’s Kate Clark, who has read through the US military and court documents, says the cases against two of the men were without evidentiary basis, while the third detainee looks to have possibly been a low-level insurgent.
11 Kafka in Cuba 3: Afghan who wore the wrong type of watch to be released from Guantanamo
11 October 2015
One of the eight Afghans still detained at Guantanamo Bay, Muhammad Kamin, has been cleared for release after a new review board assessed it was no longer necessary to detain him. Kamin, now in his late 30s and from Khost, has been incarcerated for 12 years, a third of his life. The United States believed he was a member of al Qaeda and various other terrorist organisations, although US military documents have revealed that the only evidence for this was his own confession (made at a time when the US military was using torture), a GPS device which he allegedly possessed when detained by Afghan forces in 2003 – and his Casio watch. AAN’s Kate Clark reports that, as with the other Afghans still in Guantanamo, the allegations against Kamin were vast, the evidence meagre.
12 Banning the Banned from Travel: Taleban Five still in Qatar
1 June 2015
There has been a spate of stories about the end of the travel ban on the five Taleban detainees released from Guantanamo Bay a year ago and exchanged for the United States soldier Bowe Bergdahl. US politicians and media have been speculating on what impact the five might have on the insurgency if they came to Afghanistan; last-minute negotiations between Qatar and the US to extend a travel ban appear to have succeeded. However, as AAN’s Kate Clark reports, the four senior Taleban among the five were already under United Nations sanctions and banned from travel.
13 Bergdahl and the ‘Guantanamo Five’: The long-awaited US-Taleban prisoner swap
4 June 2014
The prisoner swap negotiated between the Taleban and the United States has seen the release of the captured US soldier, Sergeant Bowe Bergdahl, in return for five Taleban held at Guantanamo Bay, including one of the movement’s founders, Khairullah Khairkhwa, and the former chief of the army staff, Mullah Fazl. Much of the reporting on the five has been inaccurate, so AAN has updated research on their backgrounds carried out in 2012 by senior analyst Kate Clark. She also looks at the relevance of the deal (which had been in the cards since 2011 and was enacted secretly through the mediation of Qatar) for any broader negotiations with the Taleban.
14 Freeing the ‘Guantanamo Five’ 2: Kafka in Cuba
11 March 2012
Five Taleban prisoners in Guantanamo Bay, whose release is a key demand of the Taleban, prior to/as part of peace talks, have said they are willing to be transferred to Qatar. President Karzai had said they had to be handed over to his government, but after a high-level visit by Afghan officials, both Taleban and the government have agreed to Qatar. The United States government has said it has not yet agreed to their release. The possibility has caused outrage among some in Afghanistan and the US Congress and allegations from GB have been used to suggest these men are the ‘worst of the worst’. AAN analyst Kate Clark argues that the allegations made at Guantanamo Bay are not credible, unless there is secondary, independent sourcing.
15 Releasing the Guantanamo Five? 1: Biographies of the Prisoners
9 March 2012
Releasing Taleban from Guantanamo Bay is on the agenda – in the context of finding a negotiated end to the conflict. Four senior and one junior Taleban official may be freed, or exchanged for the captured US soldier, Bowe Bergdahl. The idea has caused consternation among some in the US Congress, as well as consternation among some Afghans, in particular over allegations of war crimes. In the first of two blogs, AAN senior analyst, Kate Clark, argues that the first step is to know who you might be freeing; she presents biographies of the ‘Guantanamo Five’ – Khairullah Khairkhwa, Fazl Mazlum, Nurullah Nuri, Abdul Haq Wasiq and Abdul Nabi Omari. A second blog will look at the Kafkaesque quality of the judicial process in Guantanamo Bay and how it has thrown up allegations which are peculiar, opaquely sourced and peppered with factual errors.
This article was last updated on 10 Oct 2023