Obaidullah (ISN762) 14 Years in Detention

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Obaidullah (ISN762):

• Place of Birth: Dusarak Haiderkheil Village, Khost
• Year of Birth: 1980-1983 (different dates given)
• Detained by US forces in house raid, 21 July 2002 and held in Chapman Forward Operating Base, Khost; transferred to Bagram, 2 August 2002, transferred to Guantanamo, 28 October 2002
• Transferred to UAE, 16 October 2016 (Periodic Review Board)
• Guantanamo Documents: (Quotes from Gunatnamo documents (Assessment, Combatant Status Review Tribunal and Administrative Review Boards) can be read here.)

Capture

In July 2002, US forces, probably the CIA, (1) received a tip-off from a ‘a walk-in source’, ie a previously unknown informant, that an al Qaeda IED cell was operating from the house of Obaidullah, a young shopkeeper (different documents give different ages, from 19 to 22). According to his secret Joint Task Force Guantanamo Detainee Assessment, the raid “netted 23 active anti-tank mines of both Italian and Russian manufacture [and] seven empty mine shells” buried in three feet (about one metre) of earth. US forces also observed two cars, one with dried blood on the back seat (it was contended Obaidullah had used this car to ferry wounded members of the cell to hospital) and found, on Obaidullah’s person, a notebook with instructions for making improvised explosive devices (IEDs). Obaidullah was detained, along with two cousins who also lived there.

In some of the US military documents, the US asserted the tip-off had specified both Obaidullah and Bostan Karim. However, years later, the testimony of the US colonel in charge of the raid was presented in court and he referred throughout to the second man as ‘Karim’, ie in scare quotes. The team rejected Obaidullah’s brother, Faizel Karim, as being the second man and made two more raids looking for ‘Karim’ whom the informant had said was also storing mines at his home. One of the raids was on Boston Karim’s house. It found no mines, but US forces did detain his nephew, Shams Ullah, who had shot at them.

Meanwhile, a month later, Pakistani police detained two Afghans in the tribal areas as they travelled by bus from Khost to Peshawar: Bostan Karim, a seller of plastic flowers, and Abdullah Wazir (ISN 976), the owner of a tyre and car battery shop, both from Khost. After seven months, they handed the pair over to US forces, alleging they were al Qaeda operatives. The US took Karim to Bagram and then to Guantanamo. It decided he was the ‘Karim’ mentioned by the tip-off. Of the seven detainees all supposedly belonging to the same IED cell and held at either Guantanamo or Bagram, the other five have been released. The fates of the two men remaining, Obaidullah and Karim, remain integrally linked. The evidence against Karim was always meagre and what might look at first to be compelling evidence against Obaidullah – the mines, the notebook and the blood-stained car – has all been questioned, undermined or had to be discarded because of subsequent revelations.

Torture 

The US military has called Obaidullah a “self-professed member of al Qaeda” and an “admitted associate of an al Qaeda explosives cell leader.” In detention, he had testified against both himself and Karim. Yet, at the first chance he got to speak publically, his Combatant Status Review Tribunal in 2004, which ruled on whether he was an ‘enemy combatant’, Obaidullah accused the US of having tortured him in Afghanistan and forcing both confession and accusations from him.

The evidence says I admitted to being an associate of an Al-Qaida explosive cell leader, I never admitted to that. When the Americans captured me, they bound me to the American area [sic] and they began punishing me. They put a knife to my throat, tied my hands and put sandbags on my arms. At the airport in Khost I was walked around all night with the sandbags on my arms. They took me to Bagram where the interrogation and punishment increased. I was very young at that time, so whatever they said, I agreed to.

(Combatant Status Review Tribunal, transcript, 2004) 

The US military has insisted he recanted because of fear of Karim who arrived six months later. Obaid said that, after a few months when he knew he wasn’t going to be punished in Guantanamo, he began telling the truth. The dates of his interrogations, revealed in his Assessment, tend to back up his claim. The military has described Obaidullah as evasive, with an ever-changing testimony, a characterisation of him which judges hearing his habeas petition have accepted (more of which below). However, given what we know of the torture and procedures used by the US military and CIA at this time, Obaidullah’s allegations of abuse are credible. Moreover, the state would later drop the testimony it had obtained from him at Forward Operating Base Chapman and Khost, rather than contest it in court.

Allegations and Evidence

There are two accusations against Obaidullah: that he made bombs and that he was doing this for al Qaeda. If Obaidullah had been making IEDs independently or as a member of a small, unaligned group, the authority given to the president to detain under the 2001 Congressional Authorisation of the Use of Military Force would not apply. While there is evidence that Obaidullah may have been a low-level insurgent, none points to him being a member of al Qaeda, apart from the original anonymous tip-off.

In Obaidullah’s public sessions at his Combatant Status Review Tribunal and Administrative Review Boards, his narrative has been consistent. He believes he was subject to a malicious tip-off. He also provided what he said were explanations of the evidence against him.

His family, returning refugees from Pakistan after the fall of the communists (Khost fell in 1991, the government in 1992), had discovered, he said, the land mines when they returned; they believed the mines belonged to an Afghan army commander, Ali Jan, who had lived in their house during the communist era and also built watch-towers, bunkers and a basement in the house. In his CSRT, Obaidullah said that his widowed mother and himself, then aged 7-11 years old, had moved the mines away from the house and buried them “on a useless area of our land… about 300 meters from our house.” There was no established government at the time, only “warlords”, so they had buried the mines because they were “afraid the Afghan government would punish us” and later, “even hid them from the Taliban. If I showed them to the Taliban I would have been put in prison.” In 2002 when Obaidullah was detained, the United Nations Mine Action Programme For Afghanistan’s annual report called the country “one of the most mine and unexploded ordnance (UXO)-affected countries in the world.” An estimated 850 square kilometres were contaminated by mines and 500 square kilometres was littered with UXO. Every month in 2002, 150-300 people were killed or injured by stepping on mines or UXO.

The question of whether or not the land-mines were evidence of bomb-making or just leftover ordnance should have been relatively easy to clear up: what did the mines look like? Were they old and deteriorated or were they packed ready to be cannibalised for IEDs? This question does not seem to have been asked. Instead, arguments have centred around variations in Obaidullah’s and the military’s testimony (how many mines, from what country, buried how many metres from the house? Was it Obaidullah and his mother or his uncle who moved the mines? etc) and whether the variations showed evidence of Obaidullah lying or were reasonable.

As to the incriminating notebook, Obaidullah said he had been forced to join the Taleban in August 2001 and, being too young for the frontline, had been sent to a ‘technical school’ to learn how to lay bombs for use against the Northern Alliance. After just two days, he said his mother forced him to leave the course. There had been no books, he said, so they were asked to take notes which would be explained to them later in more detail.[1] He still carried the notebook around because, he said, it also had notes and accounts from his shop in it. This is the strongest single piece of evidence against Obaidullah. Apart from anything else, his explanation looks questionable: instructing someone on how to lay bombs at the frontline in a conventional war should produce different schematics from assembling IEDs for an insurgency. Adding some weight to Obaidullah’s story, however, was the impression of his interrogator, made in Assessment of another member of the alleged IED cell, Wazir :

During a second interview on 21 September 2004, ISN 762 [Obaidullah] was asked about several references found in the same notebook that held the schematics for detonating land mines. It was apparent to the interviewers that [Obaidullah] knew little of what was written in the notebook and the notebook probably belonged to someone else. It appears the notebook either belonged to detainee [Wazir] or ISN 975 [Bostan].

The interrogator’s conclusion has never been mentioned in any of the military reviews or court cases involving Obaidullah, even though the notebook is one of the key planks of the state’s case against Obaidullah.

The al Qaeda accusation

As to the second US accusation, that Obaidullah was “a member of al-Qaida… an explosives expert for an IED cell in Khowst, [Afghan] subordinate to senior al-Qaida operative, Abu Layth al-Libi (deceased),” the evidence comprises his own confession and testimony from two other detainees speaking during interrogations in Guantanamo, much later, in 2005. Many of the details of this alleged membership are far-fetched, for example, that, during the Taleban era, he “helped coordinate the movement and activities of various foreign al Qaida operating in the Khowst area.” Obaidullah was then a teenager or possibly just into his twenties. Or that he hid and relocated 18 Arab al Qaeda members to Pakistan at the start of the allied bombing campaign in 2001; the foreign militants fled later and quite openly. One other association is seen by the military and, later on, judges as damning, the short time Obaidullah spent with the missionary organisation, Jamat al-Tabligh (JT) which Karim was a committed member of. The US military has miscast Jamat al-Tabligh as a ‘terrorist support entity,’ even though millions of Muslims in South Asia are members in wholly uncontroversial ways. It assessed, therefore, Obaidullah’s “story about travelling to Pakistan under JT auspices” as “a cover story, which is commonly used to facilitate Islamic extremist activities and travels throughout the Middle East.”

Legal Proceedings: the Military Commission Trial

Obaidullah filed his petition for habeas corpus on 7 July 2008. This was followed, however, by the US state filing charges for a Military Commission trial (10 September 2008). Despite the Supreme Court having ruled that such trials were not an adequate substitute for habeas corpus, legal proceedings ahead of the trial – which never took place – caused his habeas plea to be suspended for almost two years.

Obaidullah was not charged with any actual attack, rather that he:

… did conspire and agree with other individuals, both known and unknown, to commit offenses triable by military commission, to wit: intentionally causing serious bodily injury to one or more persons in violation of the law of war, murder in violation of the law of war, and providing material support to terrorism…”

As the “overt act [s]” he “knowingly committed” in order to “effect the conspiracy, the charge sheet cites his “concealing and storing” the mines and “concealing” the notebook.” There is no more detail. The charge sheet is very short and legally strange. “Providing material support to terrorism” did not appear in the 2006 Military Commission Act, and nowhere has it been alleged Obaidullah was preparing to attack anyone except US forces, which would not violate the law of war. The new Obama administration which came into power in January 2010 was not sure if it wanted to continue with the trial and the judge in Obaidullah’s habeas case, Richard J Leon, ruled it could have time deciding what to do. Eventually, the Court of Appeal, on 16 June 2010, ordered Leon to hold the hearing. (The Military Commission charges would later be dropped, on 7 June 2011, without prejudice.)

Obaidullah’s Habeas Petition

Before the habeas hearing, Obaidullah’s lawyers sought (17 August 2010) to get the court to compel the government to disclose information about the walk in source, and whether he was paid money for the intelligence that led to the raid on Obaidullah’s home. Judge Leon refused, accepting the government’s contention that the information was too sensitive for even Obaidullah’s security-cleared counsel to read. This man’s words have remained the lynch-pin to the state’s assertion that Obaidullah is a member of al Qaeda and must stay in detention.

The habeas hearing went ahead (30 September and 1 October 2010) and, on 19 October,

Judge Leon found Obaidullah’s detention was lawful under Congress’ Authorisation of the Use of Military Force (AUMF). He was not convinced by Obaid’s explanations about the landmines or the notebook. He agreed with the government’s contention that Obaidullah had “repeatedly given false and implausible explanations regarding his knowledge of, and involvement with, these explosives, this notebook, and this automobile.” He also noted Obaidullah’s long-standing personal and business relationship, including their involvement in Jamat al-Tabligh, with Bostan Karim whom he described as having “alleged ties to al Qaeda.”

… the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate intelligence sources placing both the petitioner and Boston at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED. Combining all the evidence and corroborated intelligence, the mosaic that emerges unmistakeably supports the conclusion that it is more likely than not that [he] was in fact a member of an al Qaida cell committed to the destruction of U.S. and Allied forces.

The term ‘mosaic’ is important; it is a reference to the theory that, even if individual pieces of evidence are questionable, if they combine to form a convincing case, then judges can overlook the weaknesses of the individual pieces. The weakest piece of this ‘mosaic’ was the government’s claim that Obaidullah was a member of al Qaeda. Yet this is the most implausible aspect of the case. The chances of an Afghan being a member of al Qaeda at this time are so implausibly small that it would need a lot more explanation and evidence than just a tip-off from a walk-in source.

Bin Laden’s group had been an overwhelmingly Arab jihadist organisation in Afghanistan up till 9/11 and one which not even all the jihadist Arabs in the country had belonged to. More common after the fall of the Taleban was to accuse someone of ‘being al Qaeda.’ After the US intervention, bin Laden’s organisation went from being an entity scarcely spoken about in Taleban-controlled Afghanistan (people referred to ‘the Arabs’ or, in reference to all the foreigners fighting in the country, ‘the Taleban’s guests’) to a common claim and insult to fling at one’s enemies without need for evidence or further explanation. (2)

Yet being considered al Qaeda, rather than a ‘freelancer’ was crucial: the president only has the (domestic) legal authority to detain members and supporters of al-Qaeda and its associates, not independent insurgents.

Habeas Appeals

Obaidullah made several attempt to appeal. The District Court denied his initial request, made on 24 March 2011. His lawyers then filed an appeal to the Court of Appeals on 17 May 2011 and, on 8 February 2012, also filed to reopen the District Court (Judge Leon’s) decision based on newly-discovered evidence showing he was not guilty.

A three-judge panel of the Court of Appeals heard (23-24 April 2012, partly in closed session) the appeal and, on 3 August 2012, upheld the District Court’s ruling that his detention was legal. It rejected Obaidullah’s claim that “the pre-raid intelligence reports linking him to al Qaeda are not reliable and have not been sufficiently corroborated,” saying the notebook and mines corroborated the al Qaeda allegation. The court agreed that the allegation of ferrying IED cell members to hospital may have been mischaracterised, but said, even if that evidence was eliminated, the case against Obaidullah would still stand. The government chose to withdraw the statements obtained from him at Camp Chapman Base and Bagram, rather than contest his allegation that he had been tortured. However, the court rejected Obaid’s assertion that his statements during the raid had been coerced or mistranslated and rejected his objections to the use of hearsay evidence by saying precedence had been made during an earlier habeas case that the court “may apply a preponderance of the evidence standard and may admit hearsay evidence.” The court rejected Obaidullah’s appeal:

… the intelligence linking Obaydullah to an al Qaida bomb cell is corroborated by the fact that he had a notebook with diagrams of explosives in his pocket. While it is possible that the bombs and notebook can be explained by other circumstances, of that Obaydullah was some sort of “freelance” bomb-maker not linked to al-Qaida – the district court’s conclusion that these circumstances sufficiently corroborated the pre-dawn intelligence falls well within the realm of reasonableness.”

New Evidence or “A Re-Hash” of the Old?

Meanwhile, new revelations were being made about the case by Lieutenant Commander Richard Pandis of the US Naval Reserve. Obaidullah’s military defence counsel in his Military Commission trial had tasked Pandis with investigating the evidence against his client as the case was still officially active. Pandis travelled to Afghanistan and, after investigating the various strands of the state’s case against Obaidullah, came up with some interesting new evidence.

People from Obaidullah’s village, wrote Pandis in his declaration to the court, “identified two males who were not originally from the same village, but had lived there for a period, and who were rumoured to have sold false information to Americans. It was stated that those two men later disappeared and it is not known whether they are alive.

The blood in the car, supposedly from Obaidullah’s injured comrades, was reported to actually have been from Obaidullah’s wife. A few days before his arrest, she had gone into labour and, because of multiple checkpoints, she had been forced to give birth in the back of the car with the seats folded down on the roadside. Obaidullah, it was contended, had explained because of the taboo nature of his wife’s pregnancy and labour. The car had also actually belonged to someone else (Pandis interviewed the owner). US forces had eventually given the car to the local militia which guarded their base and the family had to sell land to compensate the owner. Witnesses said they had never seen Obaidullah driving a car or seen the car with the blood stains parked in Obaidullah’s compound before the birth of his daughter. Obaidullah had only previously driven tractors.

Non-family witnesses confirmed that the communist commander, Ali Jan, had lived in Obaidullah’s house and one witness said landmines had been stored there. US and Afghan witnesses lead Pandis to believe they were buried not 30 metres from house, as claimed by the US military, but 140-160 metres.

Family and non-family witnesses said Obaidullah had not associated with the Taleban apart from the few days he was forced to go to the Khost Mechanical School. They gave detail about Taleban conscription. Witnesses also said he had only spent a few days there and then had hid from the Taleban.

As to Obaidullah’s allegations of torture, Pandis concluded that “detainees at Bagram during this period in 2002, including Obaydullah, were subject to extraordinarily coercive methods which cause me to question the reliability of resulting statements.” He also concluded, “Obaydullah was subject to sleep deprivation and physical abuse while at FOB [Forward Operating Base] Chapman. According to U.S. witnesses with personal knowledge, one servicemember was punished for having another servicemember photograph him as he struck Obaydullah in the head with a rifle, and the camera was destroyed by U.S. personnel.

The evidence, although gathered for the military commission trial, was presented by Obaidullah’s lawyers to request a re-opening of the District Court’s decision to reject Obaidullah’s appeal. Yet, Judge Leon upheld his earlier decision. He said the elimination of the allegation that Obaidullah had been ferrying insurgents in his car made no difference to the contention that Obaidullah was an al Qaeda member. The judge complained that the lawyers had brought “unidentified witness reports, some second- or third-hand, pertaining to events that occurred almost a decade earlier.” On 28 January 2013, he dismissed Pandis’ evidence as “simply a rehash of evidence that I already considered and dismissed when denying his petition” and said, “Put simply, [Obaydullah] cannot make a silk purse out of a sow’s ear!”

An Attempt to Get the Supreme Court Involved

On 26 February 2013, Obaidullah’s lawyers petitioned the Supreme Court for a ‘writ of certiorari’, ie a request to review the lower courts’ decisions. The writ was based on three questions: Obaidullah’s indefinite detention violates the constitution, international human rights law and the law of war and cannot be justified by declaring a ‘War on Terror’ that has no end, especially when there is no evidence to suggest that Obaidullah is a present danger; lower courts had presumed government intelligence documents were accurate so he could not dispute the sometimes contradictory evidence used to justify his detention and; the source linking Obaidullah to al Qaeda had not been disclosed, is unknown and cannot be verified. As the Lawfare website reported, the writ was a “relatively non-noteworthy development”:

“…the [Supreme] Court has turned away over a dozen different appeals in such cases to date, leaving the impression that they’re not at all interested in supervising the merits of the D.C. Circuit’s jurisprudence in this field… But, if nothing else, here’s one more opportunity for the Justices to not let the D.C. Circuit have the last word, especially as (1) it looks less and less likely that Guantánamo will ever be closed; and (2) we get further and further away from 9/11 and the AUMF.”

Indeed, the Supreme Court did refuse to review Obaidullah’s case. His lawyers did not give up. Before the main case had gone to appeal (it was rejected on 3 August 2012), they had already asked for a reconsideration of Judge Leon’s decision to reject Pandis’ new evidence as a “re-hash” of old evidence (28 January 2013). This thread of the habeas petition came before the Appeals Court in January 2014 and Obaidullah’s plea that his detention was unlawful was again rejected.

What Obaidullah’s Failed Habeas Case Shows

 Obaidullah’s long and tortuous attempts to use the US courts to show that his detention was not legal revealed that the judges were unwilling to question the accuracy of the state’s assertions about him. Even as more and more elements of the government’s case fell away, Judge Leon and the appeals court judges still presumed the government’s evidence and its interpretation of events was accurate. The revelation that Obaidullah had been tortured made no dent in their acceptance of the state’s case. Consideration of the two sides’ evidence was skewed. Judge Leon’s complaint that Pandis’ evidence was based on years old second and third-hand testimony, for example, was in marked contrast to his acceptance of very similar testimony from the state, for example, what a staff sergeant, who testified in 2006 and 2010, had said he remembered a translator told him Obaidullah had said during the raid years earlier. Judges accepted the government’s view that Obaidullah was evasive and duplicitous because of variations in his testimony during different interrogations, while overlooking rather similar inconsistencies in the state’s case. Elements of the tip-off that were not true, for example, made no impact on the court’s acceptance of it overall. This was the judges’ most crucial failure: they failed entirely to question the al Qaeda accusation. This contention still rests entirely on the words of a person who may have been paid for his information and whose identity the court has ensured has been kept secret.

US Plans for Obaidullah

Obama’s 2009 Task Force decided Obaidullah should be prosecuted, although no charges were ever made. On 19 April 2016, he had his Periodic Review Board hearing and, despite a repetition of all the old assertions that he had received explosives training, fought for al Qaeda, had answered to the late Arab commander, Abu Leith al-Libbi, the Board decided, on 19 May 2016, to clear him for release. On 16 August, he was transferred to the UAE.

The Board said it had “some concern with the detainee’s failure to demonstrate sufficient candor related to events prior to detention,” but was satisfied that any risk could be mitigated, saying Obaidullah had been a compliant detainee, not expressed anti-American sentiment and taken advantage of educational opportunities in Guantanamo. His military lawyer, Marine Major Derek Poteet, said that, not only was he innocent of war crimes, but Obaidullah did not speak Arabic before he got to Cuba, making him an unlikely al Qaida fighter.

(1) Obaidullah’s Assessment gives ‘TD’, ie the CIA, as the source for details on the tip-off and Obaidullah’s capture and interrogation. Court documents described the raid as carried out by “a military unit which included American Special Operations Soldiers.”

(2) This is not to say that some Afghans did not work for the Arabs of al Qaeda before 2001. Afghanistan is a country in which every foreign organisation, ­whether the US military, embassies, media bureaux, human rights organisations, or indeed al-Qaeda, needs Afghans to ‘facilitate’ their work. The question of when a job translates into adherence to the ideological aims of the employer or loyalty to his cause is crucial to some of the other cases. Before 2001, Afghans could work for one of ‘the Arabs’ without knowing or caring about his aims. After 2001, it would be difficult to argue such associations were innocent or just based on needing a job: al-Qaeda’s notoriety was then too well well-known.

[1] Obaidullah CSRT, 2004, 3-4.