Afghanistan Analysts Network – English

Special Reports

New Special Report from AAN: “Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo”

Kate Clark 7 min

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 Mohammad 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.

Sehar Bibi and Ibrahim with photos of son Haroon Gul, whom they have not seen for 14 years. Photo: Aftab Khan, January 2021

The man tasked by President Barak Obama in 2009 with closing Guantanamo, Daniel Fried, said that setting the camp up outside any recognised legal framework, whether criminal law or the Geneva Conventions governing the treatment of prisoners of war, had been its “original sin.” It was also, he said, what made it so difficult to deal with the detention camp and “reintegrate it back into a legal framework.” Obama failed to close the camp, but more than ten years on, there is again a president in the White House who wants to do this. AAN’s new special paper provides some context to the new administration on how it could, at least, deal with the last two Afghans held there. Like the 38 other remaining inmates of different nationalities, their fate is bound up with Biden’s general decisions about Guantanamo. It is also bound up, however, with US policy towards their homeland. The special report also aims to provide information to the Afghan government, which has recently – and the author thinks for the first time – shown some interest in the fate of its nationals held in Guantanamo.

We look first at what happened to the six Afghans transferred out of Guantanamo in 2016/17 in the final months of the Obama administration, as it pushed to get as many detainees out as possible before the pro-Guantanamo Donald Trump took power. These men’s stories of continuing hardship are important to tell, not only for their own sakes, but also because they shed light on Obama’s failed Guantanamo policy. His choices were very similar to the ones Biden faces today.

Those six Afghans were promised liberty and resettlement in the Gulf. The two sent to Oman, Abdul Zaher and Bostan Karim (spellings as per the ones most commonly used in US files), were resettled and their families allowed to join them, but they remain under a travel ban and unable to come home. The four sent to the United Arab Emirates, Wali Mohammed, Obaidullah, the now late Hamidullah and Mohammed Kamin, were immediately put into further indefinite detention and spent three more years incarcerated, until they were finally freed and allowed to go home in December 2019/January 2020. Their repatriation was the work of one Afghan official, who, lobbied by Hamidullah’s Hezb-e Islami faction, strove to get him home.

The files of these six Afghans, publicly available either because of Freedom of Information requests and litigation or published by Wikileaks, are telling. None was captured on the battlefield and claims against them are based, with very few exceptions, on questionable ‘evidence’: hearsay, double hearsay, ie what a person said they heard from another person about a detainee, unverified intelligence assessments, including from foreign powers, and testimony obtained under duress, including alleged torture. The accounts of what the US thought they had done are muddled, contradictory, riven with gross errors and underpinned by ignorance of Afghans and Afghanistan. In trying to make sense of why these men were detained, little is gained by trying to understand these often fantastical accounts. Rather, looking at who informed on a particular detainee, or handed him over and considering possible factional antagonisms and financial interests makes far more sense of why they were detained.

US documents cast Hamidullah, who died months after returning to Afghanistan, for example, as plotting to bring former king Zahir Shah back to the throne. His files claim he was in league with a whole array of actors, many mutually antagonistic and several pro-American: the Iranians, the Taleban, Hezb-e Islami, the pro-king, but notoriously moderate mujahedin faction Mahaaz-e Milli (which had not fought since 1992), several pro-US government politicians from the Jamiat-e Islami party and the royalist, pro-American politician, Abdul Rahim Wardak. It is a struggle even to imagine this conspiracy. Considering his factional allegiance makes much more sense of his initial detention. Hamidullah was from a prominent Kabuli Hezb-e Islami family and detained by US and Kabul security forces, then controlled by his faction’s enemies, the Shura-ye Nizar network of Jamiat. (Just six years earlier, the two factions had been fighting over Kabul.)

The two Afghans still in Guantanamo, Harun Gul and Mohammad Rahim, were detained later, in 2007, when US forces had better knowledge of Afghanistan, and there was an actual insurgency. There is far less publically available documentation about what the US believes these two men have done and why it considers them still to be a threat. Information about Rahim is particularly scarce because the US has classed him as a ‘high value’ detainee and classified much of the information about him. He believes this classification is not about what the US thinks he did, but what it did to him – extensive torture in a black site in Afghanistan after he was handed over to the US by Pakistan’s ISI – and a desire to silence him. Even so, the types of evidence against Harun and Rahim can be gleaned from various court documents. Again, we see hearsay, double hearsay, unverified intelligence reports and testimony obtained under duress. This provides no confidence that US assertions about Harun and Rahim, that both were working for al-Qaeda and Harun also for Hezb-e Islami, are any more robust than those it made about the six whose files can be scrutinised. Moreover, again, neither was picked up on the battlefield, but rather (probably) by NDS (Harun Gul) and Pakistan’s ISI (Rahim).

In looking at what the Biden administration might do with Harun and Rahim, both currently in indefinite detention, it seems important to try to make sense of the decision to transfer the six Afghans who were sent from Guantanamo to the Gulf in 2016/7. After all, the previous 209 Afghans freed from Guantanamo had all been repatriated. The author was given two reasons for sending these six to a third country, that there was a risk they would join the insurgency and that Congressional opposition to transfers had complicated and delayed getting detainees out of Guantanamo at all. The notion of a security risk borders on the irrational. Even if the six (then) and two (now) were intent on joining the insurgency, the marginal risk they would pose, given there is already a full-blown insurgency in Afghanistan, fully supplied with both young recruits and veteran military commanders, is surely, vanishingly small. Congress did make transfers as difficult as possible – as Daniel Fried told AAN, Republican members had suddenly discovered their ‘qualms’ about transfers after Obama became president and wanted to close Guantanamo. Yet, in effect, so too did Obama’s Justice Department.

Despite Obama’s stated aim of closing Guantanamo, his Justice Department took every opportunity to block detainees’ petitions for habeas corpus – when the government must justify its detention of a person to a court or release them. The Justice Department used discredited and worthless ‘evidence’ to block petitions. It fought to keep evidence secret from detainees and used ‘testimony’ obtained from those who had been tortured. It also deployed procedural issues to delay the court for years: Kamin’s petition for habeas took six years, Wali Mohammed’s took 11 years, before both were ultimately rejected. Not opposing habeas writs would mean detainees could be released, regardless of any objections by Congress. However, it would also mean recognising that the Guantanamo project was wrong and unlawful. There is evidence that this is what the Justice Department under Obama baulked at.

Would any real peril ensue from freeing Harun or Rahim, or the two Afghans still stranded in Oman, Abdul Zaher (who possessed a suspicious brand of watch) and Bostan Karim (owner of a plastic flower shop in Khost who was deemed suspicious partly because he was a member of the quietist missionary movement, Jamat al-Tabligh, along with millions of other South Asians, disliked by Islamists, but cast by US intelligence as a front for al-Qaeda)? Looking at their files, it is difficult to imagine. It is also hard to see how the US could argue they are more dangerous than the 5,000 Taleban prisoners which it pressurised the Ghani administration into releasing in 2020, as part of the agreement it signed with the Taleban on 29 February 2020. Little information was released about the 5,000, but they included 156 men sentenced to death for crimes such as murder, kidnap, narcotics trafficking and rape. Those releases make the continued US detention of Harun and Rahim, and the travel ban on Abdul Zaher and Bostan Karim, a clear anomaly. The incongruity is even more egregious in Harun’s case, given Hezb-e Islami’s peace deal with the Afghan government, made with the full endorsement of Washington more than four years ago. Now that Biden has decided that all US troops should leave Afghanistan, there is not even the smallest rationale for keeping hold of these men.

Rahim’s prospects are more precarious than Harun’s, given his classification as ‘high value’. However, the Periodic Review Board, which considers whether detainees should be sent to trial, transferred out of Guantanamo or kept in detention, has performed somersaults before. For example, after 15 years of detaining Abdul Zahir, it moved from an insistence that he was a continuing risk to US security to saying he had “probably [been] misidentified” and had had only “a limited role in Taliban structure and activities,” or after detaining Wali Mohammad for 14 years, found his “business connections and associations with al Qaida and the Taliban pre-date 9/11 and appear to have ended.” The Periodic Review Board could reverse course again. More backing from Kabul for its nationals would help. In February 2021, Kabul asked for Harun Gul’s release given that, after the 2016 peace agreement, “all hostilities between Hezb-e-Islami Gulbuddin (“HIA”) and the United States have ceased.” This was the first time, as far as the author is aware, that an Afghan government had supported an Afghan held in Guantanamo in his petition for habeas corpus.

After scrutinising the files of all eight Afghans featured in this special report, the author could find nothing to suggest any were especially dangerous individuals. Yet, this is how the US has treated each one, by default, and with little regard for facts or evidence. Because it chose to block proper scrutiny of allegations and evidence, there has been nothing to reduce these imagined monsters, repeatedly cast by US politicians as ‘the worst of the worst’ because they were brought to Guantanamo, down to size or create a space to deal with them rationally. That may change under Biden.

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Guantanamo detainees Prisoners CIA US military Guantanamo Bay detentions detainee transfers

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