Rights & Freedoms

From Guantanamo to the UAE: A scrutiny of the three Afghan transfer cases


Detainee assessment report cover

Detainee assessment report cover

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.

AAN will be releasing a report, “Kafka in Cuba: The Afghan experience of detention in Guantanamo,” based on a study of the cases of the eight last Afghans to be held there, three of whom have now been transferred. This dispatch is based on research for that report.

Afghans were, by far the largest national grouping held in Cuba: more than a quarter of the total detainee population – 220 out of 781. (1) Three Afghans died in Guantanamo (2) and after the transfer of three men this week, just five Afghans remain. They include Muhammad Rahim, the last man to be tortured and rendered to Guantanamo by the CIA (see here).

The three now transferred (announced on 15 August 2016) are Mohammed Kamin and Obaidullah, both from Khost, and Hamid al-Razak (aka Haji Hamidullah) from Kabul. Along with 12 Yemenis, they are now in the UAE, which the US thanked for it “its humanitarian gesture and willingness to support ongoing U.S. efforts to close the Guantanamo Bay detention facility.” The Wall Street Journal reported that, although US officials would not discuss specific security arrangements, “people familiar with the matter said the U.S. typically conducts electronic surveillance of former detainees, while local authorities keep physical tabs on them.” A senior official also told the paper that the 15 men would enter a rehabilitation facility designed to ‘de-radicalize’ former detainees and would “be held indefinitely until authorities decide they can be released at a minimum of risk.” It is not yet clear if the men will eventually be allowed to return home.

Mass detentions

Kamin, Obaidullah and Hamidullah were all detained in the early years of the intervention when US Special Operations Forces (SOF) and the CIA were detaining people en masse in their hunt for ‘Taleban remnants’ and to try to get intelligence on what they feared might be the next al-Qaeda plot against America. Some Taleban were detained, but Afghan commanders working with US forces in 2001 were also able to denounce factional or personal enemies as ‘terrorists’ and get them killed or detained. The US practice of giving money for information helped fuel the denunciation of innocent individuals. In trying to fathom why a particular individual was detained, rather than trying to figure out their links to the Taleban or al Qaeda, it often makes more sense to look at the local allies of US forces and their relationship with the detainee. Understanding the particular tribal and factional context, and factoring in the opportunities there were to make money can clarify otherwise bizarre detentions.

In Kunar, for example, the anti-Taleban, Salafist leader, Haji Rohullah Wakil, had been chosen to represent Kunar in a national gathering, the Emergency Loya Jirga in June 2002. Two months later, in August 2002, he was detained and taken to Guantanamo. It seems a rival, keen to scoop up logging business and contracts for counter-narcotics work and the building of US bases, had told the US he was a terrorist. In the south, Uruzgan’s first post-Taleban governor, Jan Muhammad, a man with close, long-standing ties to the Karzai family, “used his relations with US Special Forces and his reputation as an effective Taliban hunter to target a wide range of tribal leaders and former Taleban officials, particularly from the Ghilzai and Panjpai tribes.” (3) In Kandahar, “entire tribes, like the Ishaqzai in Maiwand, a district west of Kandahar City,” reported van Linshoten and Kuehn were systematically targeted and denounced as Taleban.” (4) The tribes in Maiwand, Kandahar, had indeed supported the Taleban when they first came to power in 1994, but, said Gopal (5), “US forces were unable to recognize when those same tribes switched allegiances in 2001.” This, he said, was precisely what made Maiwand so lucrative in the eyes of the new US-allied governor, Gul Agha Shirzai, and his men, “There were weapons to be requisitioned, tribal elders to be shaken down, reward money to be collected—boundless profits to be made.”

The pattern of arbitrary detentions was seen across the border, as well. Those detained by Pakistan and handed over to the US included some senior Taleban, including ambassador Abdul Salaam Zaeef and governor of Herat, Khairullah Khairkhwa (see AAN reporting here) (both civilian members of the regime), but also many ordinary Afghans. Former Pakistani president, Pervez Musharraf, revealed in his memoirs, for example, that Islamabad had “earned bounties totalling millions of dollars” for such handovers.

The search for information

The Bush administration insisted the detainees in Cuba were all dangerous men who had been “picked up off the battlefield,” had been trying to kill American forces and were “terrorists, bomb makers and facilitators of terror,” “trainers… recruiters, financiers, [Osama bin Laden’s] bodyguards, would-be suicide bombers, probably the 20th 9/11 hijacker.”(6) It was difficult to dispute this at first, as the US government kept details of the detainees secret. The first inkling of how arbitrary many of the detentions actually were came in December 2002 when military officers at Guantanamo (see here) complained about the ‘poor quality’ of detainees being sent:

At least 59 detainees – nearly 10% of the prison population… – were deemed to be of no intelligence value after repeated interrogations in Afghanistan….None of the 59 met U.S. screening criteria for determining which prisoners should be sent to Guantanamo Bay, military sources said. But all were transferred anyway, sources said, for reasons that continue to baffle and frustrate intelligence officers nearly a year after the first group of detainees arrived at the facility.

The paper said classified intelligence reports described dozens of Afghan and Pakistani detainees who were “farmers, taxi drivers, cobblers and labourers. Some were low-level fighters conscripted by the Taliban in the weeks before the collapse of the ruling Afghan regime.” Eventually, after many years of legal challenges, determined investigations by journalists and human rights groups, better information came out. The names of the prisoners were eventually released in 2006 after a Freedom of Information Act request and litigation by the Associated Press. However, it was WikiLeaks’ publication in 2011 of secret assessments of the detainees which revealed just how disingenuous the Bush administration has been: the evidentiary basis for its allegations of terrorist activity was frequently hearsay, secondary hearsay (X told Y that Z was a terrorist), unverified intelligence reports, confessions and detainee testimony. The assessments were also rife with basic factual errors about Afghanistan.

The secrecy also worked against the US administration. They released senior Taleban commanders, not knowing who they were, including Mullah Shahzada, against whom there was detailed evidence of his command role in the 2001 massacre of civilians in Yakowlang. “U.S. officials were apparently unaware of the commander’s past record,” the Afghanistan Justice Project said, “which indicates either a serious intelligence failure or indifference to war crimes that do not fall under the official designation of ‘terrorist acts.’”

Generally, though, it was difficult to get out of Guantanamo. The Bush administration had decided detainees would not be covered by either criminal or military law, including common article 3 of the Geneva conventions. There was little protection, then, against arbitrary detention. As the three cases of the men now transferred show, the various military boards eventually set up to screen detainees at Guantanamo frequently failed to uncover the many glaring mistakes and improbable narratives in detainees’ files.

As for the courts, it turned out to be even more difficult to obtain a release through habeas corpus – when the state has to justify its detention of a person in court or free them. Judges have generally accepted the state’s version of events, including allowing secret evidence and at times, testimony obtained by detainees who had been tortured. They also accepted hearsay and pieces of evidence which were individually weak, but together produced a ‘mosaic’ of (apparent) culpability. US justice has moved immensely slow in these cases. Another Afghan still being held, Wali Mohammed who filed a habeas petition in 2005 waited until 2013 for his hearing and then another three years for the judge to rule; she decided he should stay in custody.

The chances of release are now higher since a new review body, the Periodic Review Board, started hearing cases. It is made up of military and non-military personnel, one senior official each from the Departments of Defense, Homeland Security, Justice and State and the Offices of the Joint Staff and Director of National Intelligence. In about two thirds of the cases it has heard so far, it has recommended transfer. Of six Afghan cases heard, it has decided that five men be transferred and one should stay in indefinite detention.

One might have thought that, by now, there would only be genuinely dangerous people left in Guantanamo. Republican chair of the House Foreign Affairs Committee, Ed Royce, also appeared to assume this. He criticised the Obama administration for the transfers, portraying those freed as “hardened terrorists.” Yet, a reading of the cases of the three Afghans released this week at least shows no such thing.

Summaries of the allegations and evidence against the three can be read below. Readers can also see the full details, with sourcing, of each case by clicking on the relevant link. As names and the spellings of names vary in different documents, each detainee’s unique Internment Serial Number (ISN) is also given.

A note on sourcing:

The New York Times’ ‘Guantanamo Docket’ website has gathered together all the documents from Guantanamo for each of the 771 detainees known to have been held there. Here can be found summary sheets and transcripts for the military boards which assessed whether detainees were enemy combatants, the Combatant Status Review Tribunals (CRSTs) and the boards which, every year, assessed whether detainees were still a danger to the US, the Administrative Review Boards or (ARBs). On the same website are secret Joint Task Force Guantanamo Detainee Assessments which were published by WikiLeaks in 2011. They give information about a detainee’s capture, mental and physical health, reasons for his continuing detention, the allegations against him, something of his side of the story and usually the nature of the sourcing on which allegations were based (detainee’s testimony, other detainee’s testimony, Intelligence Information Reports, which are unverified and unprocessed, and reporting by the CIA and FBI. Analysis of the cases also used documents from the Periodic Review Board hearings, habeas petitions and Military Commission trials (these were brought in twice, in 2005 and 2006, during the Bush administration, and declared illegal twice by the Supreme Court, in 2006 and 2008; they were re-introduced in 2009, by President Obama).

Obaidullah, from Khost (ISN 762) 14 years in detention

In July 2002, a ‘walk in’ source, ie a previously unknown informant, told US forces in Khost that Obaidullah was a member of an al-Qaeda bomb-making cell. They raided the shopkeeper’s house and found two dozen anti-tank shells buried on his land which Obaidullah said had been left by PDPA communist government forces in the 1980s. They also found a notebook with bomb-making instructions on Obaidullah’s person. He has given various explanations for this and one interrogator, at least, said Obaidullah did not understand what was written there. However, this remained the strongest piece of evidence against him. Every other piece of evidence, however, has had to be discounted or seriously questioned.

Much of the case against him is made up of his own testimony: under interrogation, he had admitted to being a member of al-Qaeda and also implicated several other men, notably Bostan Karim, his former business partner, who is still in Guantanamo, but also cleared for transfer (all other members of the alleged cell were released years ago). Obaidullah withdrew both confession at the first chance he had to speak publically, at a military review board in 2004, saying he had spoken under torture:

When the Americans captured me… 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.

Obaidullah’s testimony is consistent with reports by human rights groups, the media and official US investigations looking into CIA and US interrogations in Khost and Bagram at this time. (7) The US state chose to drop his confession as evidence, rather than contest the accusation of torture in court during Obaidullah’s petition for habeas corpus.

In Obaidullah’s petition for habeas corpus, judges ruling on his petition and its numerous appeals accepted the state’s accusations, even as much of its evidence fell away, shown to be questionable or wrong. Most significantly, the judges did not question the assertion that Obaidullah was a member of al-Qaeda. This was critical as a ‘freelance insurgent’ would not be covered by the US president’s legal authority to detain. Instead, judges deemed retrospectively that the walk-in source’s original accusation that Obaidullah was al-Qaeda must have been correct because his tip-off had led to the note book and anti-tank mines being found on Obaidullah’s property. That informant was the lynch pin on which the state’s case against Obaidullah rested. Obaidullah tried to discover his identity and whether the US paid him money for the information. However, the courts accepted the government’s stance that information about this source is too sensitive for even Obaidullah’s security-cleared counsel to read.

Obaidullah appeared at most to have been a low-level insurgent; if he had been captured a few years later, he would have been sent to Bagram, or even let off with a guarantee from elders for good behaviour. The rationale for holding him in the high security detention camp in Cuba was never apparent.

Mohammad Kamin, from Khost (ISN 1045) 13 years in detention

A dispatch about this case was published after the Periodic Review Board recommended his transfer from Guantanamo (in September 2015).

US documents said that Kamin, a 25 year old imam, was detained in Khost city on 14 May 2003. They do not specify who captured him, but from court documents, it seems he was probably picked up by Afghan forces who may have beaten him prior to US interrogation (the most likely force would have been the then 25th Division of the army, which was made up of former PDPA communists from Kamin’s home area – it still operates, as the Khost Protection Force under CIA command). Kamin was allegedly detained with a GPS device which had grid points for the Afghan/Pakistan border stored on it. If he did possess this GPS, the evidentiary chain is missing.

The US accused Kamin of being a member of, or affiliated to, five different terrorist groups, Afghan, Arab and Pakistani: “Al-Qaida, the North African Extremist Network (NAEN), Taliban, and Jayshe-Mohammed (JEM) terrorist Organizations and leaders; furthermore detainee has admitted ties to the Harakat ul-Mujahidin (HUM).” NAEN is not an actual group; it only exists as a US intelligence acronym. Such lists are common in detainees’ files, although nowhere does the US explain why or how one man could be affiliated with so many groups. Like Obaidullah, Kamin was supposed to have been working with the al Qaeda commander, Abu Leith al-Libbi. Looking through his documents, however, it becomes apparent that, apart from the alleged GPS device and his possession of a model of watch which is used in bomb-making – and which is also a global best-seller (the Casio F_91W), all the allegations against him come only from his own testimony. He was never accused of any actual attack. 

Hamidullah, from Kabul (ISN 1119) 13 years in detention

The case against Hamidullah was always one of the strangest of all: he was accused of working as a terrorist with multiple Afghan factions, including ones which are enemies of each other, and of working with the “extremists” of Mahaz-e Milli (the National Islamic Front). Derided as being Westernised ‘Gucci guerrillas’ by its Islamist rivals, the monarchist Mahaz was famously the most moderate mujahedin group and laid down its arms in 1992. Many of Hamidullah’s alleged co-conspirators are pro-US intervention, establishment figures, either pro-government or members of the government. Hamidullah is accused, among other things, of scheming to bring back the former king, although the US does not explain why this should be controversial or require his removal to Cuba.

His documents are littered with gross factual errors and misunderstandings, with dates, factions, alliances and whole countries wrong. Moreover, like all three of the Afghans now released, he is accused only of planning attacks or meeting alleged co-conspirators, not of carrying out any actual attack. Explanation for his detention, however, is clear. He actually comes from a prominent Hizb-e Islami family in Kabul. When Hezb-e Islami’s historical enemy, Jamiat-e Islami, the dominant force in the Northern Alliance, captured Kabul after the fall of the Taleban, it took control of the security ministries, including the intelligence agency, the NDS. Hamidullah’s detention, made in 2003 by Afghan forces then under Jamiat control, looks to have been motivated by factional enmity. Less clear, however, is why a series of military boards over many years did not realise how absurd the accusations were against him or question a case riven with factual errors. A Periodic Review Board did, however, reveal in 2016 that it was the NDS which had asserted his links with extremists. His main enemy, his lawyer contended, had not been America, but “the Northern Alliance.”

 

 

(1) Men from 49 nationalities have been held in Guantanamo. The largest contingents have been Afghans (220), Saudis (135), Yemenis (115) and Pakistanis (72).

(2) They were: Inayatullah, ISN 10028, a 37 year old who committed suicide in 2011, Abdul Razzaq Hekmati, who died of cancer on 30 December 2007, and Awal Gul, who died on 2 February 2011 after exercising.

(3) Martine Van Bijlert ‘Unruly Commanders and Violent Power Struggles: Taliban Networks in Uruzgan’, Chapter 7 in Antonio Giustozzi (ed) Decoding the New Taliban: Insights from the Afghan Field, Columbia University Press/Hurst, 2009.

(4) Alex Strick Van Linschoten And Felix Kuehn, An Enemy We Created: the Myth of the Taliban-Al Qaeda Merger in Afghanistan, 1970–2010, Hurst, 2010.

(5) Anand Gopal, No Good Men Among the Living Men: American, the Taliban and the War through Afghan Eyes, Metropolitan Books Henry Holt, 2014.

(6) All quotes are from 2005 from (in order) President Bush, the White House press secretary, Vice President Cheney and Secretary of Defence Rumsfeld. Stuart Taylor ‘Falsehoods About Guantanamo’ The Atlantic, 27 June 2005 from. The same ‘worst of the worst’ assertions were also made early on and still continue.

(7) See human rights investigations, including “‘Enduring Freedom’ Abuses by U.S. Forces in Afghanistan’”, Human Rights Watch, March 2004, and Globalizing Torture: CIA Secret Detention and Extraordinary Rendition’, Open Society Foundations, February 2013; and official US investigations, including, ‘United States Senate Inquiry into the Treatment of Detainees in U.S. Custody’, Committee on Armed Services, 20 November 2008, and ‘Study of the Central Intelligence Agency’s Detention and Interrogation Program’, The Senate Select Committee on Intelligence, 12 December 2014. (the International Center for Transitional Justice (ICTJ) lists other government investigations up till 2008, ‘Research Brief: Selected examples of Defence, Intelligence and Justice Investigative Reports into detention and interrogation practices’, 2 November 2008). There was also numerous press reporting, including an investigation by the author for the BBC’s ‘The World Tonight’ (audio no longer available, but cut-down text version available here: Kate Clark ‘Afghans tell of US prison ordeals’, BBC, 21 July 2005) and two reports into Khost by Craig Pyes and Kevin Sack, ‘Two Deaths Were a “Clue That Something’s Wrong”’ The Los Angeles Times, 25 September 2006, and ‘U.S. Probing Alleged Abuse of Afghans’, The Los Angeles Times, 21 September 2004.

(8) Kamin was charged with “providing material support to terrorism” in March 2008. Charges were dropped, without prejudice, on 11 December 2009 and were not re-filed. The charge of ‘providing material support to terrorism’ was thrown out as non-indictable in a 2012 ruling by an Appeals court which said it was not a war crime and new laws could not retrospectively punish actions not illegal at the time.

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Thematic Category: Rights & Freedoms