Afghanistan Analysts Network – English

International Engagement

Waiting for Release: Will Afghans cleared to leave Guantanamo get out before Trump gets in?

Kate Clark 12 min

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 Mohammed, 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.

Abdul Zahir was detained by the US from his home in 2002 after a false tip-off that he had weapons of mass destruction. He has had successive "major depressive episodes” in Guantanamo. In July 2016, he was cleared for transfer, but is still waiting to get out. (Photo: New York Times)Abdul Zahir was detained by the US from his home in 2002 after a false tip-off that he had weapons of mass destruction. He has had successive "major depressive episodes” in Guantanamo. In July 2016, he was cleared for transfer, but is still waiting to get out. (Photo: New York Times)

When Obama came into office in 2009, he vowed to close Guantanamo down. Congress blocked this, stopping him from transferring detainees to the American mainland for trial or incarceration. His only success has been in reducing the population; it should be down from 242 in 2009 to, if all goes to plan, around 40 by 20 January 2017 when he leaves the White House. Anyone remaining after that, it would seem from Trump’s statements on Guantanamo, is likely to be there a very long time. During the election campaign, he praised the detention camp, saying he would like to bring more detainees there. (He also praised waterboarding, although he said it was not “tough enough” and even if it did not work, he would authorise it because “they deserve it anyway for what they do to us.”) Then, on 3 January 2017, Trump tweeted that no more detainees should be transferred; they were “extremely dangerous people,” he said and “should not be allowed back onto the battlefield.”

Prisoners cleared for transfer

In mid-December 2016, there were still 22 detainees who had been cleared for transfer by a body known as the Periodic Review Board – which can also order the continuing detention or military trial of detainees. The New York Times reported that the US government had found countries willing to take 17 or 18 of them:

The effort was part of a burst of urgent, high-level diplomatic talks aimed at moving as many as possible of Guantánamo’s 22 prisoners who are recommended for transfer. By law, the Pentagon must notify Congress 30 days before a transfer, so the deadline to set in motion deals before the end of the Obama administration was Monday [19 December 2016]. By late in the day, officials said, the administration had agreed to tell Congress that it intended to transfer 17 or 18 of the 59 remaining detainees at the prison; they would go to Italy, Oman, Saudi Arabia and the United Arab Emirates.

Four prisoners were transferred out of the detention facility on 5 January 2017 – all Yemenis bound for Saudi Arabia. The deadline for the others is now approaching fast. Trump’s assessment that these men are extremely dangerous belies the facts, at least for Wali Mohammed, Abdul Zahir, and Bostan Karim. An earlier in-depth investigation by AAN, “Kafka in Cuba: the Afghan Experience in Guantanamo” (which contains sourcing for all the information cited in this dispatch) uncovered just how thin the cases against these three men were. None had been detained on the battlefield. Two had been handed over by Pakistan and the third detained by US forces from his home after a tip-off which proved to be wrong; their case files contain very little, or no evidence of wrongdoing, but rather fantastical allegations, based on hearsay, double hearsay (X said Y said Z was a terrorist), testimony obtained through torture and unverified and unprocessed intelligence reports known as IIRs, some from foreign intelligence services, including the Pakistan’s ISI. Such reports typically bear cautions such as: “WARNING: THIS IS AN INFORMATION REPORT, NOT FINALLY EVALUATED INTELLIGENCE.” There are also some gross factual mistakes in the files. It looks likely that Wali Mohammed and Zahir were victims of mistaken identity. Details of their cases and the other two Afghans still in Guantanamo can be found in an annex at the end of this dispatch.

Prisoners due to remain

If the 17 or 18 detainees do manage to get out before 20 January, that will still leave four or five other men also cleared for transfer, including (according to The New York Times article cited earlier) an Algerian, a Moroccan and a Tunisian, whom the administration is “reluctant to repatriate for reasons having to do with their home countries.” The US will not release people without security guarantees and assurances that they will not be tortured; it is not clear what the problem is in these men’s cases. There is also, reported the paper “a stateless Rohingya man whom no country [has] offered a home.”

The Periodic Review Board had recommended that ten of the other remaining detainees should stand trial in military tribunals in Guantanamo. All have been charged and one has already been convicted. The remaining 27 detainees, who include two Afghans, Harun Gul and Muhammad Rahim(1) have been called ‘forever prisoners’. The Periodic Review Board has ordered them to remain in detention without trial; they are considered too dangerous to release, but the US authorities do not have court-worthy evidence against them.

Both Harun and Rahim are accused of being facilitators for al Qaeda and have been detained since 2007. Harun was captured in Afghanistan probably by the National Directorate of Security, the NDS (the US said it did, the NDS said it did not), and Muhammad Rahim in Pakistan by the ISI. Again, neither was detained in battle; their cases are also based on intelligence. There is far less information in the public domain about their cases than the Afghans detained in earlier years. Neither has had the opportunity to publically defend himself, even in the limited ways open to those men detained earlier.

From court documents, Harun Gul looks to have possibly been a low-level Hezb-e Islami commander, in charge of a handful of men in Nangarhar in the post-2001 era, but allegedly also working as a courier for al Qaeda. In June 2016, the Periodic Review Board encouraged him to continue to “work with his family and representatives on his future plans and be forthcoming with the Board in future reviews.” It sounded like a hint that if he was more organised, the Periodic Review Board might assess his case differently and decide that rather than him continuing to be a ‘forever prisoner’, it could recommend his transfer. Harun Gul had another review on 11 January 2017, but the Periodic Review Board will not decide on his case for months, not until long after the new president takes office.

The fifth Afghan still in Guantanamo, Muhammad Rahim also from Nangarhar, was the last person ever to be rendered and tortured by the CIA and brought to Cuba. The US accuses him of having worked with al Qaeda leader Osama bin Laden. He is the only Afghan in Guantanamo that has been classed as ‘high value’ by the US authorities. His case is so secret his lawyer has complained he cannot say why he thinks his client is innocent because that would reveal classified information. Although the US has not revealed the evidence against Rahim, the sources of that evidence can be seen in court documents from 2010 and they are the same as in the other cases AAN has investigated: hearsay, double hearsay, testimony obtained under torture and unverified and unprocessed intelligence reports.

Prospects for the five Afghan detainees

There are no prospects, at the moment, of Rahim being cleared for transfer. The Periodic Review Board’s assessment of him was unequivocal: “…his indifference to the impact of his prior actions, and.. his extensive extremist connections provide him a path to re-engagement.”

The Board might change its recommendation for Harun from continuing detention to transfer, but if it does, this will be after Trump takes office. His lawyer, Shelby Sullivan-Bennis of human rights organization Reprieve, is trying to stay optimistic, despite the looming Trump presidency. She told the Associated Press it was still possible Trump would retain some current policies on Guantanamo once his administration had studied them, “At this point, we are all just keeping our fingers crossed for the best outcome.”

As for the three Afghans cleared for transfer, even if they do get out of Guantanamo, the impact of a decade and a half in prison will remain. A secret assessment of Zahir from 2008, published by WikiLeaks, revealed that he had “chronic lower back pain, sciatica,” and had gone through “hunger striking not requiring enteral feeding, and has a history of major depressive episodes.” His lawyer, Shayana Kadidal, described his life as “irretrievably damaged.” Wali Mohammed’s only son was killed in a road accident as he drove from Pakistan to Kabul to try to reclaim his father’s shop in Kabul’s money market. AAN was told by other money changers that a “strongman” had sold the shop and pocketed the proceeds. Most of our clients, Kadidal has said, “leave [Guantanamo] not angry but rather broken and depressed.”

The Guantanamo detention camp is now into its 16th year (it was opened on 11 January 2001) and will soon be into its third American president. Obama inherited it from Bush and, despite his election promises to close down the facility, will soon bequeath it to Trump. Afghans were, by far, the largest national group there, comprising more than a quarter of the 781 men ever held. Among the 220 Afghan detainees were a scattering of Taleban, but also farmers, taxi drivers, shopkeepers, a few children and one Shia Muslim. Three Afghans died in custody. Almost all of the rest were eventually freed. Whether, at the end of this week, two or five Afghans remain in Guantanamo now depends on last minute work by the Obama administration and host countries to complete the transfers.

Annex: The Afghans still in Guantanamo

Haji Wali Mohammed, a 53 years old money changer from Baghlan, has been detained for more than 15 years. He was picked up by the ISI in Pakistan in January 2002, he believes, because a tribal jirga had just ruled he was owed money by a man who was an ISI agent, and handed over to the Americans. According to his own detailed account, he was tortured by Pakistan and then by the Americans in Bagram, Kandahar and Guantanamo. The US accused him of being a financier for al Qaeda, the Taleban and Hezb-e Islami. It has never provided evidence that he was doing anything other than running a legal business; money changers in the Central Money Market have always worked with the Kabul government, including the Taleban’s, to ensure the supply and stability of the currency. Indeed, Wali Mohammed had been something of a failure as a money changer, losing half a million dollars in a shared arbitrage scheme with the Central Bank; he was heavily in debt when detained.

When ruling on his petition for habeas corpus, the judge, despite having allowed the government to present evidence kept secret from Wali Mohammed and his lawyer, dismissed the US government’s assertion that Wali Mohammad had “hobnobbed constantly with U.S. enemies and flew all over Europe at bin Laden’s command.” She found it “not credible” that Wali Mohammed could have acted as al Qaeda’s money manager after he had lost so much of the Central Bank’s money, although she did think he had been financing the Taleban and Hezb-e Islami. At the time of his arrest, Hezb-e Islami was not a party to the conflict, nor was it listed as a terrorist organisation, so this accusation should, anyway, have been irrelevant. Wali Mohammed has had the backing of all the other money changers in the Central Money Market in Kabul; they wrote to the US authorities arguing for his release. This was a significant show of support as they represent all parts of the country and strands of opinion.

Wali Mohammed was cleared for transfer on 26 September 2016. His lawyer, contending he had been a victim of mistaken identity, said he had been “very unlucky – most of all in having an extremely common name.”

44 year old Abdul Zahir was detained from his home in Logar by the US military and CIA after a tip-off that he possessed “weapons of mass destruction” in July 2002. Years later, in 2015, it was revealed the Americans had found only salt, sugar, and petroleum jelly at his home. Nevertheless, he ended up in Guantanamo. He had worked as a choki dar (an unarmed guard or doorman) and translator for an Arab commander with al Qaeda, Abdul-Hadi al-Iraqi, before 2001. Although such employment was not uncommon or particularly controversial in the hard-pressed economic times of the Taleban regime, the US contended he had been ideologically committed and was “a trusted member of al Qaida.”

Zahir was also in a car in 2002 from which a grenade was thrown at western civilians. One, a Canadian journalist, was seriously injured. Zahir was put on military trial at Guantanamo in 2006, on charges of “conspiring to commit war crimes, aid the enemy and attack civilians,” although the prosecutor accepted he had not thrown the grenade. The trial collapsed: already in shambles – the applicable law had not been decided and there was no-one to translate for Zahir – it was finally halted after the Supreme Court ruled that the president lacked the constitutional authority to hold such trials.

In July 2015, the Periodic Review Board recommended he be transferred and made a sort of admission that mistakes had been made. It said he had had a “limited role in Taliban structure and activities,” and had “probably [been] misidentified as the individual who had ties to al-Qaeda weapons facilitation.”

Bostan Karim, a seller of plastic flowers from Khost, was accused of being the leader of an al Qaeda IED cell. He was detained by Pakistani police in 2002 on a bus as he travelled to Miram Shah after another passenger, Wazir, had passed a broken Thuraya satellite telephone to Karim; the police had been taking Wazir off the bus for questioning and he said he gave the phone to Karim because he feared the police would steal it. Both men ended up in Guantanamo, although Wazir was released in 2007. The Pakistanis and Americans later asserted – for reasons which are incomprehensible – that the phone was being used as a detonator for IEDs. They did not explain why a terrorist would be taking a detonator out of Afghanistan. Nor did they say why possession of a satellite phone, then in common use in Khost, was evidence of wrong-doing. The judge in Karim’s petition for habeas also agreed the phone was evidence that Karim was an al Qaeda terrorist.

Karim’s fate came to be bound up with his former business partner, Obaidullah, whose house in Khost had been raided a month earlier by the US military and CIA after a tip-off. Obaidullah was tortured and ‘confessed’ that both he and Karim were in the same al Qaeda IED cell. He was also sent to Guantanamo. There was some other evidence against Obaidullah, although it fell away substantially during his habeas petition and appeals. There was never any evidence at all that Karim was an insurgent. However, the case against each man came to prop the other’s up. The judge in Obaidullah’s habeas petition said that his “long-standing personal and business relationship with at least one al Qaida operative [Karim],” was one reason why he must also have been a member; the judge in Karim’s case quoted his fellow judge who had said that Obaidullah was more likely than not “a member of an al Qaeda bomb cell committed to the destruction of [US] and Allied forces,” as evidence against Karim.

Karim had also been a missionary with Jamat al-Tabligh, an organisation with millions of followers in south Asia which proselytises among Muslims, urging them to lead better lives. It has endured a historical and sometimes violent antipathy from militants, including the Afghan and Pakistani Taleban, who dislike its view that now is the time for preaching (dawa), not war (jihad). US intelligence, however, classes Jamat al-Tabligh as a “terrorist support entity” and Karim’s membership and Obaidullah’s occasional attendance at meetings additional proof of them having been terrorists. Karim told one of his review boards at Guantanamo:

First of all, I am not a member of the Taleban and I’m not a member of al-Qaida. I’m a business man. I have two stores. In one store, I sell plastic flowers. In the other store, I rent furniture and dishes for special occasions. I am a missionary; I go house-to-house, village-to-village, spreading my religion.

Bostan was also ‘accused’ of having an uncle who was a member of Hezb-e Islami in the 1980s. At the time, it was actually America’s favourite faction among the mujahedin whom it then supported in their fight against the Soviet occupation of Afghanistan. In one of the bizarre mistakes that litter the files of the Afghan detainees in Guantanamo, the file describes Hezb-e Islami in the 1980s as “one of the seven Al Qaida terrorist groups operating in Pakistan.” It was of course one of the seven Afghan, mujahedin groups fighting in Afghanistan. At that time, al Qaeda had yet to be founded.

Karim was cleared for transfer by the Periodic Review Board on 2 June 2016. (Obaidullah was released two months later in August 2016 and sent to the United Arabic Emirates where he is believed to be in a ‘de-radicalisation’ programme and still in some form of detention.)

Harun Gul, a 35 year old from Nangarhar, was detained in Afghanistan in 2007 and accused of being a Hezb-e Islami commander and facilitator for al Qaeda. Of all the Afghans, the least is known about his case. However, one document presented to the court in Muhammad Rahim’s petition for habeas corpus quoted notes from Harun’s interrogation (Harun testified against Rahim, although possibly under torture). The notes said Harun Gul had been in charge of six armed groups in Nangarhar province, each with three to five men, and a total operational budget for each group of 20,000 to 40,000 Pakistani rupees (roughly 200-400 US dollars) every one to three months. This does not read like the “senior commander of Hezb-e-Islami/Gulbuddin” the US claimed to have captured. The US said Harun admitted to serving as a courier for the senior leadership of al Qaeda. However, he has described being tortured, and said his captors in Afghanistan “blindfolded, shackled, and hung him by the arms while they were still cuffed behind his back, stripped and tortured him…. kept [him] alone and naked in a cell without even a bucket as a toilet.” He has said that, during interrogations in Guantanamo, he was “shackled for up to twelve hours without water or food in a position that allowed him to neither fully stand nor sit, preventing any sleep.”

On 14 July 2016, the Periodic Review Board recommended his continuing detention, although also hinting that he might be cleared for transfer if he was more forthcoming.

Muhammad Rahim from Nangarhar is accused of having been a facilitator and translator for Osama bin Laden. He was detained by Pakistan in February 2007 and handed over to the CIA; it appears the ISI said he might know the whereabouts of bin Laden. Rahim was rendered to Afghanistan and tortured. In all, he was subject to eight sessions of sleep deprivation, including three which lasted for more than four days and one, the last, which lasted for almost six (138.5 hours). The interrogation was such a failure that the CIA held an internal enquiry, concluding that the fact they had known nothing about Rahim prior to questioning him had been the problem. Nevertheless, when it transferred him to Guantanamo, the CIA announced to the world that it had captured “a tough, seasoned jihadist” who had “bought chemicals for one attack on U.S. forces in Afghanistan,” a man who was “best known in counter-terror circles as a personal facilitator and translator” for bin Laden and who had “helped prepare Tora Bora as a hideout for bin Laden in December 2001.”

His case is classified, so it is difficult to assess it, but court documents show he apparently admitted to working with al Qaeda commanders before 2001 and up to their escape from Tora Bora into Pakistan. However, all the serious allegations both before and after 2001 are sourced to unverified and unprocessed intelligence information reports and, to some extent, other detainees’ testimony, including Harun’s.

Like Harun, Rahim has been given no chance to defend himself publically. He has, however, written a series of funny and apparently perceptive letters to his lawyer which have been published. In them, he jokes about the local wildlife in Cuba, discusses pop culture and American television and calls Donald Trump an idiot and, rather than a war hero, a “war zero.”

On 9 September 2016, the Periodic Review Board, 9 September 2016, accepted the US military’s case against him and recommended his continuing, indefinite detention.

 

 

(1) Readers may have noticed two spellings for Mohammad used in this piece. They are as per the original US documents.

Tags:

Human Rights detainees Guantanamo Bay

Authors: