Afghanistan Analysts Network – English

Rights and Freedoms

Freeing the ‘Guantanamo Five’ 2: Kafka in Cuba (first posted: 11-03-2012)

Kate Clark 13 min

A possible prisoner exchange – captured US soldier, Bowe Bergdahl, for five key members of the Taleban who are held in Guantanamo Bay – is top of the Taleban’s agenda for negotiations, according to their spokesman, Sohail Shaheen, speaking to AP. When this exchange was first mooted in early 2012, it caused outrage among some members of the US Congress and some newspaper editors, who accused the men of being the ‘worst of the worst’. Research by AAN senior analyst Kate Clark into the backgrounds of the five men (see her re-published ‘Releasing the Guantanamo Five? 1: Biographies of the Prisoners’) led to her delving into how the US makes its allegations against those in Guantanamo. In this second re-published piece, she says the Kafkaesque ‘judicial’ process there throws up allegations which are peculiar, opaquely sourced and peppered with factual errors. All too often, though, these then get repeated as fact when they can only be deemed credible if there is independent secondary sourcing.

The five Taleban who have been mentioned for possible release (reporting on today’s visit can be seen here and here) are: Khairullah Khairkhwa, the former governor of Herat and one of the founding fathers of the Taleban movement, Fazl Mazlum, former head of the Army, Nurullah Nuri, former head of the northern zone, Abdul Haq Wasiq, former deputy head of Afghanistan’s intelligence agency and Abdul Nabi Omari, a minor figure and former judge who appears to be on the list because he has links to the Haqqanis who are holding the captured US Soldier Bowe Bergdahl, whose exchange may be part of any deal. (find detailed biographies of them in our previous blog here)

Some commentary has described the men as among the ‘worst of the worst’, in other words, among those still held because they are too dangerous to be freed. In practical terms, it is difficult to see how these five could return to the fight in Afghanistan – if, indeed, they wanted to – if they are released to house arrest in Qatar. Objections to their release are often based on allegations made against them in Guantanamo Bay, and yet the procedures applied there has been irredeemably flawed – which is not to say that there may be no grounds for holding them, but that material originating from Guantanamo Bay needs to be scrutinised.

It is worth reading the summaries and transcripts of military hearings held in the prison since 2004 (1) and other classified, but leaked documents, to get a flavour of the Kafkaesque quality of proceedings. Basic judicial flaws – detainees have no legal counsel, there is no presumption of innocence, they cannot see the evidence, the use of hearsay testimony by un-named individuals – are compounded by factual inaccuracies. There is muddle and miscommunication between the military and the detainees who struggle to understand what system of justice they are facing – itself a flaw in the due process.

Starting with the charge against the men, the initial accusation was that they were ‘enemy combatants’, a category defined as:

‘… an individual who was part of or supporting the Taleban or al-Qaeda forces, or associated forces that are engaged in hostilities against the United States or its Coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.’

In the eyes of the US authorities, the one-off military hearings (known as Combatant Status Review Tribunals) held in 2004-2005, succeeded in proving this charge against all five.

The wording of the category ‘enemy combatant’ is a nod to common article 3 of the Geneva Conventions which removes protection from civilians who ‘directly participate in hostilities’, allowing them to be lawfully targeted.(2) Since 2001, there has been a great deal of debate over the legal grounds for detention, as opposed to targeting, by US governments, US courts and the International Committee of the Red Cross, among others.(3) What can be said in relation to Guantanamo Bay is that ‘directly supporting hostilities’ here encompasses many normal civilian government activities.

For example, actions put forward to prove that Khairkhwa is committed to the Taleban (and therefore should not be released) include what look like attributes of good governance; he was selected to be governor or Herat by ‘a senior Taleban leader’ and, once there, is alleged to have been ‘trusted by the Taleban to keep order in Herat… and to send taxes back to senior Taleban leaders.’ In 1998, he is also alleged to have sent back seized weapons to headquarters in Kandahar. Some ‘evidence’ pointing to Wasiq (the former deputy intelligence chief) as being ‘committed’ and therefore an ‘enemy combatant’ include that, in his own words, his job had largely been to prevent crime, and that he had been responsible for logistics – buying firewood, plastic for windows and ovens for the Taleban.

As to how the hearings are conducted, the transcript of Wasiq’s tribunal in 2004 is interesting because he keeps trying to assess the authority of the tribunal and to fathom the status of the evidence against him. This is one interchange which has come after the tribunal’s president has told Wasiq their job is to decide his ‘fate’:

Wasiq: Basically, I heard a court is where a judge sits, and the prosecutor brings evidence against the detainee. The prosecutor is supposed to bring proof; what kind of proof does he have?

Tribunal President: First of all, let me clarify, we are not here to punish you today. This is not a court, but an administrative, non-judicial hearing.

Wasiq: Most of the time you call me an enemy combatant; if you call me this, I need proof.

Tribunal President: Unfortunately, you have no witnesses and the Recorder has no witnesses, the only information available in this open session will be the Detainee Election Form [which says whether the detainee elected to take part in the tribunal], the unclassified Summary of Evidence and your statement, should you wish to give one.

Wasiq asks to see ‘the secret document’, a letter which he has heard about which he supposedly wrote to his brother and in which he allegedly passed on greetings to an (un-named) member of al-Qaeda. However, the letter is classified and, indeed, even the president of the tribunal says he has not seen it. The president of the tribunal tells him he would need security clearance to be able to see it.

Later, when answering the charge that he ‘used a radio to communicate with the Taleban chief of intelligence’ (his boss), Wasiq explains that they used radios because telephones did not exist in Afghanistan at the time:

Wasiq: … I am asking you the judge, if this makes me guilty, then I am guilty.

Tribunal President: Just for clarification, I am not a judge; I am a military officer assigned as President of the Tribunal.

Wasiq: But I thought you meant you were a judge. You told me you were a judge.

Tribunal President: Just a miscommunication.

Wasiq: But you decide the good, the bad; you tell me if I am right or not right.

Tribunal President: That is what we’ll try to do; determine if you’ve been properly classed as an enemy combatant today; continue please.

Wasiq and the others battle to understand what they are defending themselves against. From the summaries released by the Department of Defence, we know that hearsay testimony is used, without even the type of source being identified (which, given what was happening in Afghanistan and elsewhere in the early years after 2001 could have been obtained under torture, or as deliberate misinformation from rival Afghans). So, for example, ‘a source stated [Wasiq] was an al-Qaida intelligence member and the Taleban Deputy Minister of Intelligence ’, while ‘an individual’ said he:

‘… appointed an individual who was chief in Hezb-e Islami Gulbadin (HIG) as an intelligence Officer during the Taleban reign; As of August 2005, the individual reported US and Coalition Forces operations to Taliban groups in an effort to facilitate their escape.’

In the Afghan context, appointing someone outside one’s group might be construed as possible evidence of professionalism; the fact that the hired individual went on to allegedly become active in insurgent circles several years later is a bizarre and illogical complaint to make. However, it is not the only peculiar and apparently random charge. Who, for example, could the ‘former Taleban supreme leader’ possible be who is quoted by ‘a source’ as having said Fazl was ‘his top soldier’? There ever has been only one Taleban supreme leader: Mulla Omar.

Many of the allegations against Khairkhwa are to do with his alleged dealings with Iran. Yet Iran and the Taleban were enemies during the Emirate after eight Iranian diplomats and intelligence officers and a journalist were killed in Mazar-e Sharif in 1998. Iran massed troops on the border and the countries almost went to war, and Tehran was a major backer of the Northern Alliance. Post 9/11 Iranian intelligence sat down with the CIA to share targeting information on the Taleban. (This information I had at the time from US and – via two different journalists – Iranian officials.) One cannot rule out that elements of the Iranian state may have had dealings with the Taleban regime when still in power, but on the face of it, it is an odd allegation to make.

Many of the claims made against the five look to have been put together by people with not even basic knowledge of Afghanistan or, indeed, access to Google. The Taleban capture of Mazar-e Sharif, which Khairkhwa is alleged to have taken part in, is said to have taken place in 1996. The date is wrong. Bungled transliterations of even famous Afghan figures – ‘Mohacake’ (‘hot from the bakers’?) is how Muhaqqiq is rendered – erodes confidence in the material even further.

The accounts given by the men themselves at their hearings are sometimes frank, at other times dishonest. There are bits and pieces of truth in the material from Guantanamo, but it needs a lot of sifting and double checking to separate the gold from the rubbish. If the cases were ever to go in front of a real court, it would be difficult to see them not being thrown out. In other words, a huge health warning has to go on this material. Yet, this is not only the basis of what the US authorities think about the men, it also forms the bulk of the material publically available to journalists and others trying to work out who these men are and why they are being held.

In recent weeks, press reporting on the five, using this material, has ranged from journalistically well-intentioned, but somewhat sloppy, to deliberately hostile. AFP and AP both at least try to be balanced. Yet,
AFP, in its report on Khairullah Khairkhwa looks to have imported errors from the Guantanamo Bay files. It has Khairkhwa as a ‘bloody commander’ when the Taleban captured Mazar-e Sharif in 1996. (As my last blog detailed, Khairullah did take part in the first Taleban capture of Mazar, but that was in 1997 and it was thousands of Taleban prisoners of war who were then massacred. Evidence suggests he was not there in 1998, when the Taleban re-captured the city and took revenge by murdering thousands of civilians.) In trying to assess Khairkhwa’s record as governor of Herat, AFP quotes a religious teacher who said he was a ‘really good man,’ while the current head of police says he ‘heard [Khairkhwa] killed hundreds of people up north’, before urging the world: ‘Don’t let Khairkhwa back.’ Yet the men were not in Herat at the time – one was in Iran, the other Uzbekistan. We learn nothing.

AP, the Wall Street Journal and today’s USA Today all report that Nuri – note the passive voice – ‘has been accused of ordering the massacre of thousands of Shiite Muslims.’ This is an unsourced, throwaway allegation, without the detail of times, places and command chain to even be able to assess it. Nuri’s positions as head of the northern zone (rais-e tanzim-e shomal) and governor of Balkh were administrative, not military positions and although it is of course possible for a civilian leader to have command and control responsibility for war crimes, in Nuri’s case, none of the investigations on civilian massacres during the Taleban period, which have generally been rigorous and comprehensive, have pointed to him having played such a role. (For sources on all the war crimes mentioned in the next paragraphs, see footnote 4)

The Wall Street Journal is explicitly hostile to the men’s release and cherry-picks allegations from the files – or sources them to un-named officials, stacking them up as evidence as to why Congress should raise a fuss about the proposed transfer. ‘Wasiq, it says, ‘was the deputy head of Taliban intelligence, which tortured and murdered civilians.’ The same charge could be made against the Afghan intelligence agency during the mujahedin and communist governments and indeed post-2001 when it has been supported by the CIA and has worked closely with foreign forces. (For detail on recent allegations of the widespread use of torture, see this UNAMA report.).

The Journal also quotes a ‘confidential annex of the Administration’s 2010 review’ (review of what is not specified), saying that both Fazl and Nuri are suspected of having killed the CIA agent, Johnny Michael Spann, at Qala-ye Jangi. At face value, this is a peculiar allegation to make – given that hundreds of prisoners took part in the uprising and the identities of most were unclear at the time. As reported in our previous blog, Northern Alliance sources even deny the presence of the two Taleban officers in the fortress: they were being held in a separate guesthouse in the city. Even so, The Journal says: ‘At a minimum Fazl and Nuri ought to be properly investigated—and perhaps put on trial—for Spann’s murder and war crimes committed in Taliban-ruled Afghanistan.’

It is easy to be sarcastic. The US authorities have had these five prisoners, among many others (5), in their power for nine or ten years without putting them on trial or undertaking ‘proper investigation’. Moreover, none of the international powers have been particularly interested in war crimes before, whether it was the crimes of men like Fazl when they were in power (when as BBC correspondent, before 9/11, I had to struggle to get news of Taleban massacres on to domestic radio) or since 2001, when being an alleged war criminal (pre or post-2001) has been no bar to having a close working relationship with diplomats and international armed forces in Afghanistan. However, the issue of alleged war crimes is too serious to be batted away because it is being exploited by some for political reasons.

Fazl Mazlum was indeed a key person in the use of the Taleban’s scorched earth tactic, which targeted civilians connected only by ethnicity and/or sect to factions within the Northern Alliance when those factions re-captured and then lost territory; it was a terror tactic designed to wipe out further resistance, whether directed against people in Shomali (mainly Sunni Tajiks), or the Hazaras and Sayeds of northern Hazarajat, or Uzbeks and Ismailis elsewhere in northern Afghanistan. Yet, at the same time, his were not unparalleled crimes during the long Afghan conflict.

Soviet and Afghan government forces deliberately targeted rural civilian infrastructure in an attempt to wipe out mujahedin resistance, bombing villages, orchards and irrigation systems and helping to drive millions of Afghans from their homes. There were also massacres, most notoriously at Kerala village in Kunar province, in March 1979 before the Soviet invasion, when more than one thousand men, women and children were killed by government forces.

In 1993, government forces of the Islamic State of Afghanistan from the Jamiat and Ittihadfactions, also massacred civilians, in the Kabul neighbourhood of Afshar in 1993. This was an attack directed against Hazara civilians, in this case the murder of hundreds, mass rape and using civilians for slave labour, which aimed at preventing a rival group (Hezb-e Wahdat) allied to the civilians by ethnicity and sect from re-taking the Afshar neighbourhood. Several senior members of the current government –- face allegations over this massacre.

The north of Afghanistan has seen not only massacres of civilians carried out by Fazl and his comrades, but also the mass killings of Taleban prisoners of war – an estimated 3000 by General Malek in 1997 and an estimated 2000 in 2001 by forces loyal to General Dostum who, as the dogged investigators at the Nobel-prize winning, Physicians for Human Rights  (PHR), have commented, ‘were operating jointly with American forces’ at the time – Special Forces and CIA. PHR, along with investigative journalists, have revealed the attempts, allegedly by Dostum’s men, to destroy evidence at the mass graves and the repeated blocking of investigations by the US during the Bush presidency. President Obama promised to look into the case, but until now nothing more has been said, although as PHR has said, ‘Under international law, the cover-up of a war crime is itself a war crime.’ (For other reporting on this, see herehere and here.)

I raise these other cases not to try to minimise the grave crimes carried out by Fazl, Wasiq and other Taleban while in power, nor because, politically in the Afghan context, it seems unfair to single out only Taleban war crimes, or because of the apparent hypocrisy of US officials alleging war crimes against individuals who have been denied the most basic protection due to them under the laws of armed conflict, but because addressing the legacies of war crimes by all parties may well be necessary if there is to be an enduring political settlement in Afghanistan.(6)

Dealing with prisoners will certainly be necessary. All non-state armed groups trying to reach a peace deal want the release of their people – whom they consider political prisoners or prisoners of war. The Taleban are no different. For the state involved – in this case, the United States – freeing enemy prisoners, especially those seen as having blood on their hands, is always difficult and painful, but if it is not on the agenda, it is difficult to envisage a negotiated end to the war.

(1) There have been two types of military hearings: one-off Combatant Status Review Tribunals, which were held between July 2004 and March 2005 and addressed whether the detainees had been correctly classified as ‘enemy combatants’ and could be held indefinitely; the detainees had no legal counsel, were not informed of the charges against them and enjoyed no presumption of innocence; since then, hearings known as Administrative Review Boards have been held annually and determine whether prisoners are still a threat to the US and its allies and should be released or stay detained. Summaries and transcripts of hearings have been released by the US Department of Defence, following a Freedom of Information request in 2006 and can be read here.

(2) The status of the detainees and whether they should enjoy even the minimal rights accorded under common article 3 of the Geneva Conventions was an issue for the courts during the Bush administration and had an effect on why and how the military hearings were set up. The relevant passages in common article 3 are:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(Sourced from the ICRC website)

(3) There is debate over the precise scope of the authority to detain provided under the laws of armed conflict and whether it is broader that that for targeting and killing, and over how this maps on to authority under the Authorisation for the Use of Military Force, which is what the US administration claims grants them the legal authority to detain. The points of disagreement generally centre on what forms of support constitute grounds for detention—and whether and how these are distinct from Direct Participation in Hostilities (DPH). The ICRC interprets detention power to extend to those who represent an, ‘imperative threat to state security,’ which may include people who are not DPH. The term ‘enemy combatant’ as applied by the US seems broader than DPH. However, the scope of it may still be legally valid. The question is whether its scope is effectively broader than the detention authority contemplated by common article 3 and the laws of armed conflict, more generally.

(4) Detail on alleged war crimes can be found in the Afghanistan Justice Project report, (cited above), the suppressed United Nations Mapping Report of 2005 and the Human Rights Watch (HRW) report, ‘Blood-Stained Hands’.

(5) Another example of this was – to human rights activists – the inexplicable release from Guantanamo Bay in 2003 of one of Fazl’s close comrades, who had field command in two massacres of civilians, Mullah Shahzad. Were US officials aware of Shahzad’s record of war crimes, and released him anyway? Or were they ignorant of who they had in custody? As the Afghanistan Justice Project noted, ‘[t]he Bush administration was claiming that secrecy regarding detainees and facilities was essential for security; but in fact, that secrecy has actually undermined security.’ Shahzad immediately rejoined the Taliban and was killed the following year.

(6) Legally, there are other issues. There are many alleged Afghan war criminals, but they are not in custody, whereas Fazl is. As the ICRC argues in relation to detainees (cited above in footnote 3), ‘those suspected of having committed war crimes must be held accountable for their actions.’ Also, ensuring accountability for war crimes committed in Afghanistan is the legal responsibility of the Afghan government (although, international support and especially, US political will, is important here).


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