AAN Papers

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

A major new report from AAN’s Kate Clark looks at the Afghan experience in Guantanamo, where a quarter of the total number of detainees held were Afghan, the largest national group. The report takes a ‘deep dive’ into 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. None of the eight were picked up on the battlefield, so accusations are based on intelligence. Yet, the report finds many of the allegations against them are both vague and far-fetched, with accusations based on hearsay, testimony obtained under torture or duress, and unverified intelligence reports.

In this report, author Kate Clark, takes a long hard look at the cases of the eight Afghans who were still in Guantanamo at the start of 2016, reading through reams of documents to try to understand why these eight men were captured and why they are still being held. Six were detained in 2002 and 2003 when the US military and CIA were making mass, arbitrary arrests of Afghans as they tried to find information on the whereabouts of Osama bin Laden and hunt down what they believed were ‘remnants’ of the Taleban. Reward money or personal enmity looks to have been behind five of these six detentions. The other two Afghans in this study were detained in 2007 when there was an actual insurgency and US intelligence was better, albeit still flawed. One was handed over by the NDS; the other was detained by the Pakistani ISI and was the last person to be rendered and tortured by the CIA.

The study shows how Afghan allies of US forces were able to exploit their lack of information about the country to denounce their personal or factional enemies and get them detained. The US practice of giving money for intelligence further contributed to wrongful detentions. Pakistan, as well, made millions of dollars in bounties from handing over ‘terrorists’, many of them non-combatants. None of the eight Afghans whose cases are studied in this report were detained in battle. Instead, intelligence forms the basis for all the detentions and that intelligence is parlous. Far from them being the ‘worst of the worst’, the oft-repeated phrase used by supporters of Guantánamo to describe its inmates, the US has failed to make a compelling case against any of these eight Afghans.

 The paper also looks at the legal regime that awaited those who were sent to Guantanamo. The Bush administration had put no mechanisms in place to sift combatants from non-combatants, after deciding the Geneva conventions did not apply to ‘war on terror’ detainees. It also decided to imprison the detainees at its naval base in Guantanamo, believing federal law, which also protects against arbitrary detention, would not apply there. AAN’s report describes how fierce battles by journalists, human rights activists and lawyers slowly brought some limited rights to detainees and revealed some information about them. The gap between accusations and evidence was laid bare in 2011 when Wikileaks published secret classified assessments of the detainees.

The report finds that military review boards, tasked with ensuring only combatants who posed a danger to the United States were held, and civilian courts tasked with ruling on inmates’ petitions for habeas corpus (when a government has to justify its detention of an individual in court) have failed as mechanisms for getting justice. Detainees have had to prove their innocence, rather than vice versa. At review boards, they have had no legal counsel and no right to call witnesses; only a handful of detainees from the 781 held at Guantanamo have been released this way. Civilian courts have accepted evidence which would have been thrown out in a criminal trial, including hearsay, testimony obtained under duress or torture and secret evidence which neither petitioner or their lawyers have been allowed to see. Case files are full of gross factual mistakes, misunderstandings and fantastical allegations. Yet both review bodies and courts have failed, over many years, to identify these fundamental flaws.

Clark’s in-depth study of the cases of the last eight Afghans to be held at Guantanamo is a lens which reveals serious problems with US intelligence and US justice. It highlights, as well, the perils of using arbitrary detention. The consequences of the Bush administration’s decision to throw away the rule book have been disastrous for individual detainees and their families, and also Afghanistan. Arbitrary detention was a powerful factor driving some Afghans to insurgency, helping spark a new phase in a long and bitter conflict which Afghans had thought was finally over. It is now sixteen years since the US began its intervention in Afghanistan and fifteen years since it sent the first Afghans to Cuba. Yet the conflict in Afghanistan, like America’s dilemma of what to do with its legacy of war on terror detainees, shows no sign of ending.

Structure of the report

After an introduction, “Chapter 2, Easily Detained, US Post-2001 Detention Policies in Afghanistan,” looks at how America came to detain so many people in Afghanistan, mostly in dubious circumstances. The Taleban regime had collapsed swiftly and unambiguously in 2001. Yet the US believed there were still ‘remnants of the Taleban’ whom it needed to hunt down. In reality, US forces ended up detaining not only Taleban, many of whom had surrendered, but also huge numbers of ordinary people. The chapter also looks at how Afghans and Afghan and Pakistani state agencies were able to exploit the US desire to hunt down terrorists by falsely informing for money or because of personal rivalries.

“Chapter 3: Sources of Information and the Shifting Legal Landscape” looks at the system facing detainees when they arrived in Cuba: a secret detention regime without basic legal protections. Getting information about the detainees has largely been bound up with legal challenges and with deliberate, unauthorised disclosures of information. This chapter briefly outlines the evolving legal situation and the sources of information that have emerged, often as a result of this process.

“Chapter 4: The Case Studies” scrutinises the evidence against each of the eight Afghans still in custody at the start of 2016. It first gives summaries of the cases, and then presents a forensic look at the allegations and evidence against each of the eight. None were captured on the battlefield, so intelligence forms the main or sole basis of allegations. Cases are rife with hearsay, factual errors and misunderstandings, testimony obtained under duress or torture, and secret evidence. Those who have tried to find redress through the courts or faced trial in military tribunals have encountered uncertainty about the law, repeated procedural delays and judges who have believed assertions by the government in the face of deep flaws in its evidence.

“Chapter 5: Conclusion” contains some final reflections on the failure of the US state and justice system to deal fairly with those the state detains, and the consequences of this failure.

 

The full report can be downloaded here.

Read the executive summary here.

 

 

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