Rights & Freedoms

Kafka in Cuba: New AAN report on the Afghan experience in Guantánamo


Afghan detainees at Guantanamo Bay (Left to Right): Hamidullah, Bostan Karim, Abdul Zahir, Haji Wali Mohammed and Obaidullah. Photo: New York Times

Afghan detainees at Guantanamo Bay (Left to Right): Hamidullah, Bostan Karim, Abdul Zahir, Haji Wali Mohammed and Obaidullah. Photo: New York Times

Afghans make up more than a quarter of the inmates ever held at Guantánamo Bay, the largest national grouping among United States ‘war on terror’ detainees taken to Cuba. Most were picked up in the early years of the US-led military intervention when US forces carried out mass, arbitrary detentions of Afghans. In a major new report, AAN’s Kate Clark looks at the Afghan experience in Guantánamo, honing in on the cases of eight of the longest-serving Afghan detainees. Five are still in Cuba, while three were transferred to the United Arab Emirates in August where they are believed still to be in some form of detention. She finds the Afghans’ documents to contain outlandish errors of fact, bad translations, testimony obtained under torture, fantastical allegations and cases based on hearsay and unverified intelligence reports.

Reading through the files of the eight Afghans still in Cuba at the start of 2016 is to enter a Kafkaesque world. None of the eight were detained on the battlefield – six were handed over by Pakistan or Afghan forces and two were detained after tip-offs from unknown sources. Instead, intelligence forms the basis for all the detentions and that intelligence is threadbare.

The US military gets dates wrong, provinces wrong, mixes up non-belligerent groups and jihadists and reaches back to make ahistorical allegations – assuming bin Laden had set up al Qaeda a decade before he did, or deciding association with Hezb-e Islami in the 1980s (when it was part of the mujahidin fighting the Soviet occupation and, incidentally, America’s favourite faction) is proof of malign intent in the 2000s. Three of the detainees had associations with the mass, quietest, missionary organisation Tablighi Jamaat; the US holds that as proof of terrorist intent, even though the organisation is anti-jihadist, believing that now is not the time for fighting (jihad), but for preaching (dawa) and persuading Muslims to live better lives.

Thousands of Afghans (the exact figure is unknown) were detained in the early years of the US-led intervention. The 220 Afghans taken to Guantánamo (the total population of all nationalities was 781) included some Taleban, but the vast majority were non-combatants. They included men who had opposed the Taleban or were part of the new post-2001 establishment, old men with dementia or physical ailments and minors, including two boys who had suffered gang rape by a commander. There was also at least one Shia Muslim.

To determine why a particular Afghan was arrested, when looking at the case files, it often makes more sense to look at his personal circumstances than try to work out what links he might have had to the Taleban or al Qaeda: what factional or tribal conflicts was he involved in, did he have enemies who were allies of US forces or the CIA, was there an opportunity for an informer to make money?

In five of the cases, money or personal enmity appear to have been behind their detentions. This was a common feature in the early years of the US-led military intervention as the US military and the CIA sought to hunt down ‘remnants of the Taleban’ when remnants, in terms of forces offering resistance, did not exist (it would be some years before an insurgency took off in Afghanistan).

Haji Wali Mohammed, for example, a money changer in the central money market in Kabul, was captured by the Pakistani intelligence agency, the ISI, in January 2002 and handed over to the US. He believes the ISI turned him over to the US because a tribal jirga had earlier ruled that he was owed money by an Afghan ISI informer. The US has accused Wali Mohammed of being a financier of both the Taleban and al Qaeda, although his files contain no evidence of him having any role beyond that of a publically-known money changer at a time when the Taleban were in power. Another man detained at Guantánamo, Kamin, an imam from Khost, looks to have been captured and handed over to US forces by the 25th corps of the Afghan army, a Khalqi communist militia originating from his home district. (The militia later escaped demobilisation under the DDR programme because of its close links to US forces. It subsequently became the Khost Protection Force, a CIA-allied militia which still operates and stands accused of abuses, including of detainees).

Many of the allegations against the eight Afghans featuring in the report are strange. Hamidullah, for example, who comes from a prominent Hezb-e Islami family in Kabul, was handed over by the NDS in what looks to have been a case of factional enmity; the Afghan intelligence agency was then controlled by Hezb-e Islami’s historical enemies, Jamiat-e Islami. The US military accused Hamidullah of working to bring former king Zaher Shah back to power in 2002 and of plotting with the “extremists” of Mahaz-e Milli (the National Front led by Pir Gailani, now head of the High Peace Council) against the Karzai government. Mahaz was always known as the most moderate of the mujahedin factions, monarchists who were dismissed by hardliners as ‘Gucci guerrillas.’ It has not fought since 1992. The US also alleged Hamidullah had plotted with Hezb-e Islami, the Taleban, various figures in the (pro-intervention) Jamiat-e Islami establishment, like MPs Mullah Ezat and Haji Almas, and the Iranians.

These sort of ‘alphabet soup’ accusations are common in the files. These were the allegations made against Kamin, the imam picked up in Khost city in 2003, for example:

It is assessed detainee is a key member of the Anti-Coalition Militia (ACM) and/or the Al-Qaida Network. Detainee has participated in weapons trafficking, explosives training, operational planning, and attacks against US and Coalition forces in support of the Al-Qaida network. Detainee is affiliated with Al-Qaida, the North African Extremist Network (NAEN), Taliban, and Jayshe-Mohammed (JEM) terrorist Organizations and leaders; further more detainee has admitted ties to the Harakat ul-Mujahidin (HUM). 

Neither ACM or NAEN, despite their appearance, are actual organisations or exist anywhere outside US intelligence reporting. Nowhere is it explained why or how one man could be affiliated with so many groups. From intelligence and legal perspectives, such allegations of multiple, overlapping memberships of disparate (Afghan, Arab and Pakistani) organisations make no sense. Usually, chains of command form the basis for trying to understand an enemy like al Qaeda or the Taleban, and for making a case as to whether war crimes have been committed. Moreover, in Afghanistan where membership of an armed group is usually based on a solidarity grouping (clan, ethnic group or former comradeship), such lists are nonsensical. All the eight Afghans are accused of having been members of at least two groups.

The gap between allegations and evidence

Getting information on the detainees in Guantánamo has been a long, hard struggle given the Bush administration’s desire for secrecy. Transcripts of military review boards were finally published in 2006, after a two-year battle by the Associated Press using Freedom of Information Act requests and litigation. In 2011, WikiLeaks also published secret assessments of the detainees, revealing much of the sourcing on which US allegations had been based. Many assertions, it turned out, were based on weak, or indeed non-existent evidence. There was a heavy use of hearsay and double hearsay (X said Y said Z was a terrorist) and testimony from those who had been tortured. Six of the eight Afghans under study have said they were tortured in ways which match the methods the US military and CIA are known to have used. There is corroborating evidence (from the Senate report on torture or in testimony presented in court) for the use of torture in two of these cases. Accusations by fellow detainees, including those made under torture, are also accepted as evidence.

Unverified and unprocessed Intelligence Information reports (IIRs) are cited both in the military reviews and in court. One former intelligence officer described IIRs as a “generalized reporting vehicle that collects unprocessed and unverified summaries of claims made to U.S. intelligence agencies, usually by foreign sources.” The FBI has described them as raw intelligence reports which usually bear cautions such as: “WARNING: THIS IS AN INFORMATION REPORT, NOT FINALLY EVALUATED.” The US military also uses summaries, rather than the actual transcripts of interrogations – which may have been lost or never made. It is easy to see how mistranslations, misunderstandings and incorrect inferences could creep in, given that these are summaries, not verbatim transcripts.

The US military also uses also strange, associational notions of suspicion. Bostan Karim, a seller of plastic flowers from Khost, is said to have “admitted” to meeting Jalaluddin Haqqani, of the ‘Haqqani network’. The encounter turned out to have been a, presumably obligatory, meeting of all the shopkeepers in Khost at a time when Haqqani was the pre-eminent commander in Khost: all the shops in the bazaar were closed for the event. At one of Karim’s review boards in Guantánamo, the military goes on to say that Haqqani had formed an alliance with Gulbuddin Hekmatyar which was being supported, guided and funded by al Qaida and the Jamat Ulma Islami [sic] which the US refers to as “Pakhtoon tribe” (it is a Pakistani political party) which “regularly recruited from a mosque in Abdabot [sic], Pakistan,” and “[a]fter Friday prayers, members of the organization solicited for volunteers to fight in the jihad.” It does not say which jihad they were recruiting for or what any of this had to do with Bostan Karim.

No way to plead one’s innocence

Once sent to Cuba, detainees found there was no way to persuade anyone that they were not combatants. In 2001, the Bush administration had believed America was facing a uniquely dangerous enemy and the old rules could not apply. It took unprecedented and unusual measures – keeping all details of the detentions secret, not applying the Geneva Conventions (including the minimum protection given by common article 3), withholding protections given to those suspected of crimes, and using torture in interrogations. This meant those arriving in Cuba were left unprotected by any of the usual measures (whether criminal or military) which aim to safeguard individuals from arbitrary detention by the state.

The administration eventually set up military review boards to try to prevent detainees seeking redress through the federal courts. These review boards never managed even to clean out the obvious factual mistakes in the files, let alone question substantive accusations. There was a presumption that detainees were guilty unless they could prove themselves innocent, but they were not told the specifics of the allegations against them and nor were they allowed to call witnesses or have lawyers.

Perhaps the most disturbing aspect of AAN’s study is that the civilian courts in the US completely failed to hold the executive to account. Supreme Court decisions in 2004 and 2008 ruled that detainees could seek redress through habeas corpus petitions made in the federal courts. One of the oldest human rights, a habeas petition forces the state to come to court to justify its detention of an individual. However, in the cases of the three Afghans under study who have made habeas petitions, the courts accepted evidence that would have been unacceptable in criminal trials (this was usually admitted on grounds of ‘national security’). Judges have accepted hearsay and evidence kept secret from the petitioners and their lawyers and allowed the government to repeatedly delay proceedings in ways which lawyers told AAN off the record they thought were deliberate.

Money changer Wali Mohammed, for example, had to wait for three years for a judge to rule on his case, as the government sought to re-open the record and present more evidence (some of it secret). In other cases, judges have accepted the testimony of those who have been tortured; they have weighed up whether testimony could be classed as voluntarily given if was made to a different US agency from the one which carried out the torture, or after a period of time had lapsed between torture and confession.

Federal courts have thus generally accepted the state’s evidence and its interpretation of evidence, without much question. Bostan Karim, the plastic flower seller from Khost, for instance, was turned over to the US by the ISI in 2003. The ISI claimed he matched the description of an al Qaeda terrorist and had a broken satellite phone in his possession while passing the border, which they claimed was used as a detonator for IEDs. Karim’s judge took this allegation at face value – as the US military had done before him – even though at the time, before a mobile phone network was established in Khost, satellite phones were in common use by those who could afford them. The judge accepted Karim’s possession of the phone as proof of terrorist intent.

Some end, for some, in sight

It seems likely that now, after between nine and fourteen years in detention, most of the remaining Afghans in Guantánamo will finally be released. A newish body, the Periodic Review Board, which has a mix of military and civilian officials, has been reviewing the case files of all the detainees still incarcerated. In the last year, all eight of the remaining Afghans have had their cases re-assessed. Six of them have been deemed safe for transfer (ie sent from Guantánamo to another country with security guarantees; this is not yet freedom). One was told his role with the Taleban had been “limited” and that he had been “misidentified as the individual who had ties to al-Qaeda weapons facilitation” – as he had contended all along. Another was told there was a “lack of clear information regarding his involvement with al-Qa’ida or the Taliban.” The other four were judged to pose no risk to the US, or a risk that could be mitigated. In August 2016, three of the men were transferred to the United Arab Emirates, where they were put into a ‘de-radicalisation’ programme. Afghan and US officials told AAN it is not clear how long they will have to stay there and whether they will be allowed, eventually, to return to Afghanistan.

One of the Afghans looks likely to remain in indefinite detention, however. In September 2016 the Periodic Review Board decided to keep Muhammad Rahim in detention. The ISI had captured him in 2007 and handed him over to the CIA, saying he was a close associate of Osama bin Laden. The CIA then ‘rendered’ him to Afghanistan where he was tortured, the last ‘participant’ in the CIA’s global rendition programme. Rahim was subject to eight sessions of sleep deprivation including three which lasted for more than four days and one for almost six (138.5 hours). The interrogation resulted in no useful intelligence. Still, Rahim was transferred to Guantánamo and the CIA told the world they had captured bin Laden’s translator.

The US has classed Rahim as a ‘high value’ detainee, which means much of the substance of the allegations against him is classified, even from Rahim himself. He has had no opportunity, even in the limited ways open to other detainees, to defend himself. His lawyer, Carlos Warner, has complained that, while the state can say what they like about his client, he cannot even say why he thinks he is innocent, because to do so would be to reveal classified information. Warner has written extensively about what he calls the unconstitutional abyss that lawyers find themselves in, when trying to represent detainees in Guantánamo.

… this is a system where as counsel I usually cannot share the Government’s allegations with my own client. I cannot investigate the charge because I cannot share the allegations with the subject of the investigation. Imagine trying to get to the bottom of a bar fight that resulted in a death. I can’t tell my client who was killed or why the Government says he’s involved. I can’t even tell him when the assault occurred or in what bar the assault took place. I certainly cannot interview or cross-examine his accusers. Moreover, I can’t visit the bar or talk to any other witness to the fight. I am also prohibited from speaking with the coroner or any of the investigating officers. Sometimes, the Government will say “we have important evidence about your client regarding our allegation, but we can’t tell you what that evidence is.” Sometimes, the Government just tells the judge without telling or notifying me at all. All of my communications with my client are observed and recorded. All of my legal correspondence is read and inspected by the Government. Guantanamo has been referred to as “Kafka-esque,” and that reference is right. “Catch-22” also aptly describes the legal malaise that is currently called Guantanamo habeas corpus. Nothing in my legal training prepared me for this endeavor.

Rahim’s is the only one of the eight cases where the US accusations somewhat coherently point to an Afghan working with the al Qaeda leadership before the fall of the Taleban. Proof that he played a role after the collapse of the Taleban regime, however, is far less evident. We cannot see the evidence against him, but scrutiny of court documents shows the nature of the evidence against him. It is similar to the other cases: Rahim’s own testimony and that of two other detainees (one of whom has also said he was tortured) and unprocessed and unverified intelligence reports. Given what we know about the evidence used against the other detainees, it cannot be assumed that the secret evidence against Rahim is either accurate or true.

Most of the last Afghans in Guantánamo may soon be out, although not yet back and living freely in Afghanistan. Yet there has been a huge cost in lives wrecked. Hamidullah, the ‘Mahaz-e Milli extremist’ has requested not to be returned to Afghanistan or Pakistan. Those who told US forces he was a terrorist are still in power and he fears for his safety if he goes home; he asked the Periodic Review Board to send him to any other Muslim country. Other detainees have suffered depression or other mental health problems. “Prison usually damages people,” said Shayana Kadial, the lawyer for Kamin. “[M]ost of our clients leave not angry but rather broken and depressed.”

The Afghan experience in Guantánamo shows the perils of arbitrary detention. The miscarriages of justice are clear, but the consequences go beyond the harm done to individuals and their families. The early mass arrests – often accompanied by torture by US forces and Afghan allies of US forces, as well as looting and extortion – was one of the main reasons driving some Afghans to become insurgents. Arbitrary detentions, therefore, helped re-kindle a war which Afghans thought was finally over and one which they, and the US, are still now embroiled in. For the US, the costs have been high too; eight years after promising to shut Guantánamo down, President Obama is still struggling with what to do with America’s ‘war on terror’ legacy.

 

Download Executive Summary here.

Read the full report here.

 

 

 

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Thematic Category: Rights & Freedoms