Rights & Freedoms

The ‘Other Guantanamo’ (13): What should Afghanistan do with America’s foreign detainees?


The remainders of the US' foreign detainees in Bagram: two Tunisians, two Tajiks, one Egyptian, and one Uzbek. (The photo shows other prisoners.) Photo: Khaama Press

The remainders of the US' foreign detainees in Bagram: two Tunisians, two Tajiks, one Egyptian, and one Uzbek. (The photo shows other prisoners.) Photo: Khaama Press

The United States bequeathed Afghanistan a huge problem when it finally and completely transferred its detention facility at Bagram to the Afghan government in December 2014. For the previous 12 months, it had been urgently trying to get rid of all of the 50 or so foreigners it held there. In the end, it failed to find home or third countries willing to take six of them. They are now in Afghan hands. Here, AAN names them all for the first time. They include two Tunisians who were tortured by the CIA in 2002, three Central Asians and an Egyptian who has lived in Afghanistan since the 1980s. AAN’s Kate Clark says that, unlike the US which detained people without trial for years, the Afghan authorities have been trying to take a ‘rule of law’ approach to the six, although the legal time limit for charging or freeing them has  already passed – with no announcement. Clark also reports that the government has started using Bagram as its high security jail for Afghans convicted of serious security offences.

The US handed over all its Afghan detainees at Bagram in March 2013, but kept control of one section of the detention facility for its foreign detainees until 12 December 2014. Announcing the final handover, the US also revealed it had transferred two Tunisians to the Afghan authorities. It was only when AAN spoke to Afghan officials that we learned these were not the only detainees the US had left behind. There are four others, officials have said, an Egyptian, two Tajiks and an Uzbek. The US military subsequently confirmed to AAN that this was indeed true.

The secrecy with which the US handled its final actions in Bagram was nothing new. From the start, concealment – including a refusal to name those it held – encouraged abuses and miscarriages of justice, from the covered-up killings of detainees in the early years, to the CIA rendition and torture programme and, subsequently, the fear that ‘ghost detainees’, men unknown to the outside world, could exist and be lost in the system. (1) (For detail on this and background to Bagram detention facility in general, see AAN’s detentions dossier.)

So far, the Afghan government has behaved rather more openly. Several officials have spoken to AAN and have also given us the names and some biographical information and sight of some of the men’s files. They have also discussed the dilemmas and difficult choices now facing the Afghan state.

The detainees

The six foreign detainees transferred from American to Afghan hands are listed below, in order of their date of capture. Also given is each detainee’s unique Internment Serial Number – ISN. (2)

The Tunisians: 

Ridha Ahmad al-Najar/Najjar (ISN 1466) According to the 2014 US Senate Report on CIA torture, al-Najjar was detained by Pakistan in late May 2002, rendered by the CIA to [redacted, but presumably Afghanistan] in June 2002 and transferred to the CIA detention facility known as the Salt Pit in September 2002. The CIA had set up this and other secret facilities separate from the military to conceal them from the International Committee of the Red Cross. Al-Najjar, whom the CIA believed to be the bodyguard or caretaker of Osama Bin Laden, was the first detainee to be held at the Salt Pit; he was there for 69 days, before being transferred, either directly or eventually, to Bagram (the record is not clear). The Senate report quoted a military legal officer who had visited the Salt Pit and said al-Najjar’s interrogation plan included:

…“isolation in total darkness; lowering the quality of his food; keeping him at an uncomfortable temperature (cold); [playing music] 24 hours a day; and keeping him shackled and hooded.” In addition, al-Najjar was described as having been left hanging—which involved handcuffing one or both wrists to an overhead bar which would not allow him to lower his arms—for 22 hours each day for two consecutive days, in order to “‘break’ his resistance.” It was also noted al-Najjar was wearing a diaper and had no access to toilet facilities. [All punctuation as in the original.]

It is worth noting that, two months after Najjar’s interrogation which used cold temperatures to try to break him, another detainee, an Afghan, Gul Rahmat, died of hypothermia after being left naked on a bare concrete floor. Interrogators had ordered his clothes removed because he was being “uncooperative.” (An investigation by the Associated Press many years later revealed the killing; no charges were ever made. As for Najjar, his interrogators reported more than a month into his interrogation that he was “clearly a broken man,” on the verge of mental collapse and “was willing to do whatever the CIA officer asked.” Najjar’s treatment, said the Senate report, became a model for CIA interrogation.

Lutfi al-Arabi al-Gharisi (ISN 1209): It is not known when or where al-Gharisi was captured, but the Senate report says he was in CIA custody for 38 days and, in October 2002, was “subjected to at least two 48-hour sessions of sleep deprivation.” However, given that the CIA kept such poor records at the Salt Pit that it still cannot say the number or identity of those it detained and, says the Senate Report, did not report “multiple uses of sleep deprivation, required standing, loud music, sensory deprivation, extended isolation, 
reduced quantity and quality of food, nudity, and rough treatment” of detainees,” (3) the sleep deprivation known about should be considered the minimum al-Gharisi was subjected to.

When al-Gharisi was handed over to the Afghan authorities in December 2014, all that was known about him was a name that had appeared on a 2009 list of Bagram detainees that the US military had been forced to release following a Freedom of Information request. It is still not known what the US believed he had done.

The Tajiks:

Said Jamaluddin (ISN 4057)

Born 1990 Dehgalman, Tajikistan.

Abdul Fatah (ISN 4058)

Born 1983 Dehgalman, Tajikistan, formerly a businessman.

These are two brothers who, according to the US files on them, have admitted to being the sons of Mullah Amruddin (also known as Amriddin Tabarov), a 60 year old Tajik militant who is reported to have come to Afghanistan in 1993 and fought with different Central Asian and Pakistani jihadi groups, moving between Afghanistan and Pakistan. Amruddin is a wanted man in Tajikistan, with an Interpol notice out on him.

According to their US files, the two brothers were captured on 22 March 2009 during a raid on a house in Imam Sheh [as written], Kunduz. During the raid, fire was reported to have been returned and some light weapons (five Kalashnikovs, ammunition, etc) found. The files said the two men have admitted to membership of the Islamic Movement of Turkestan and identified their father as a founding member and leader. The files also contained accusations that they had facilitated movements of fighters from al-Qaeda, the Islamic Jihad Union and the Islamic Movement of Uzbekistan across Afghanistan. (4)

A Detainee Review Board – a US military panel which used to periodically review all detainees held at Bagram – decided on 23 February 2010 that both Jamaluddin and Abdul Fatah had been combatants but that internment was not necessary to “mitigate the threat” it believed the two men posed. The boards recommended both for “transfer to a third country” for “possible prosecution or continued detention in accordance with that nation’s laws.” (5) (See investigations on the detainees by Andy Worthington here and original paperwork here.) It was usual for detainees to spend years in Bagram after being cleared for release, as it also is at Guantanamo Bay (see AAN reporting here).

The Uzbek:

Musa/Muso Akhmadjanov/Ahmedjanov son of Anwar Ahmedjanov (ISN 20370)

Born 1980, Tashkent.

According to his US file, Akmadjanov was captured on 23 May 2010 as he crossed into Afghanistan from Mashhad, Iran. It says he has admitted to being a member of the Islamic Jihad Union and was going to Kunduz. It also alleged he had been facilitating the movement of foreign fighters across Afghanistan.

The Egyptian (although with an Afghan wife and presumably children):

Abu Ikhlas al-Masri (21064)

Born 31 December 1963 in Dimiat in the Nile Delta.

Abu Ikhlas is a known figure, an Arab commander who came to fight in the jihad against the Soviets in the 1980s (his US file says 1988) and never returned home. Instead, he married a woman from Kunar province and settled there. His file says he studied engineering and, as a young man, was an activist with the Egyptian militant group, Islamic Jihad; members of this group would go on to form the ‘Egyptian’ element of al-Qaeda under the leadership of Ayman al-Zawahri. How he became important in the post-2001 insurgency was reported in a 2008 story in The New York Times Magazine:

As the Afghans tell the story, from the moment the Americans arrived in 2001, the Pech Valley timber lords and warlords had their ear. Early on, they led the Americans to drop bombs on the mansion of their biggest rival — Haji Matin. The air strikes killed several members of his family, according to local residents, and the Americans arrested others and sent them to the prison at Bagram Air Base. The Pech Valley fighters working alongside the Americans then pillaged the mansion. And that was that. Haji Matin, already deeply religious, became ideological and joined with Abu Ikhlas, a local Arab linked to the foreign jihadis. 

Abu Iklas was appearing regularly in media and academic reporting from about 2006, (6) referred to as a or the senior al-Qaeda commander in Kunar. The Pakistani newspaper, Dawn, for example, in a story about a diary found after a senior al-Qaeda commander was killed during fighting in the Bajaur tribal region of Pakistan, reported that Abu Ikhlas’s family was one of those noted in the diary as getting stipends from al-Qaeda. Abu Ikhlas was reported to have been captured in December 2010, according to his file, during an attack on Jalalabad airport. A leaked ISAF report from 2012, State of the Taliban, which sought to understand the insurgency through interviews with detainees in Bagram, reported him as telling his interrogators

Pakistan knows everything. They control everything. I can’t (expletive) on a tree in Konar (Province) without them watching. The Taliban are not Islam. The Taliban are Islamabad. 

Other detainees:

As well as the six men ‘inherited’ from the Americans, the Commander of Bagram detention facility, General Faruq Barakzai, told AAN they were also holding a number of Pakistanis detained by Afghan forces. He gave no details of numbers or names. However, they might include those arrested in January 2015, on suspicion of involvement in the Peshawar school massacre.

What to do with the foreign detainees now? 

The Afghan state appears to have four options: 1) follow the American example of detaining the men without trial; 2) see if any have a case to answer and, if they do, put them on trial; 3) give them residency rights to stay in Afghanistan, or 4) deport them to their home or third countries. At the moment, the state appears to be trying to take a ‘rule of law’ approach, treating the six as far as possible as it treated Afghan detainees at Bagram (once it had gained control of them from the US military), ie according to Afghan law. It is also looking into transferring them out of the country.

Prosecution?

On 11 December 2014, when the US military was only admitting to having handed over the two Tunisians, its spokesman told AAN the pair had been transferred “for potential prosecution.” It was always difficult to imagine an Afghan court accepting these cases, given that one and possibly both men had been brought to Afghanistan by force and could hardly be considered to have committed crimes on Afghan soil. Moreover, when the Senate investigation into the CIA’s use of torture was published, President Ashraf Ghani described it as “shocking,” “inhumane” and “unjustifiable” and vowed to defend the dignity of those who had been mistreated. Both the Tunisians were subject to the CIA’s ‘enhanced interrogation techniques.’ The other four men, however, were captured in Afghanistan, so may have criminal charges to answer.

Under President Karzai, officials fiercely upheld the sovereignty of Afghan law when dealing with America’s Afghan detainees, deciding the state had no right to detain people without trial – in contrast to the US which has largely interned its ‘War on Terror’ detainees. (See the evolving tussle between the Afghan state and the US military about the, as the Afghan state saw it, illegality of the US detaining Afghans, here, here and here). The message from the Afghan officials AAN has spoken to is that the six foreigners must also be treated according to Afghan law.

A caveat here: the Afghan state does not always keep to its own law when dealing with Afghan detainees and convicted prisoners. For example, NDS and police often keep suspects beyond the 72 hour limit, before they should be released or charged, and prisoners who have finished their sentences may languish in jail because they cannot pay bribes to get out. However, this is a straying from the law, not a decision to not apply it. With the foreigners, it seems the aim, at least, is to try to treat them lawfully.

AAN understands that the dossiers of all six men are now with the Attorney General and that prosecutors and NDS investigators have been interviewing them at Bagram. General Barakzai told AAN they bring translators with them if necessary, even though the three Arab detainees have all learned some Pashto, enough for basic issues like healthcare and food.

One official who has seen some of the files told AAN he thought putting together prosecutions might be difficult because the US had not handed over evidence, just files which assert what it believes the men have done and who they are. Another official, speaking off the record to AAN about the one or two men who were detained in Pakistan and rendered to Afghanistan, said, “Our judges would say, ‘We don’t have jurisdiction over them.’ The courts would not accept them. In the end, to get results, we must talk to their countries.” 

As to holding the men without trial, as the Americans did, Barakzai told AAN they had ruled out this out:

The foreign detainees will be treated exactly the same as Afghans. If they committed crimes in Afghanistan, they will be prosecuted like Afghans, according to Afghan law. Whether an Afghan court views their cases and finds them guilty, or finds there is no evidence against them, it will decide. 

One official told AAN that if the Attorney General could not put together cases against the men, they must be freed, “They are suspects, not convicted men.” However, General Barakzai thought differently: if there was not enough evidence to put them on trial or if they were found not guilty, he said they would then be handed over to their own countries – and they could then choose to stay at Bagram:

At that point, if the detainee suggests he would be threatened and not feel safe in his country and says, “Please don’t deport me,” the Afghan government would keep him in the detention centre because he would have no other place to go. We would ask the Red Cross to find another country where he would feel secure and protected.

AAN was told the state would keep to the legal time limit (ie 202 hours) for holding detainees before either charging them or letting them go and this would be counted from the time of transfer, not the initial US detention. However, we calculate that, according to the law, the men should by now have been charged or freed. (7)

Transfer?

Eventually, the Afghan state will probably want the detainees to leave Afghanistan, whether there is a decision not to prosecute, if a court finds them guilty or after sentences have been served. However, the fact that the US was not able to transfer these men during its rush last year to clear Bagram suggests their home countries did not want them, or they themselves refused to be repatriated, and third countries ready to take them were not found either. Under the legal principle of non-refoulement, the US could not transfer detainees where there are “substantial grounds for believing that he would be in danger of being subjected to torture” (article 3 of the Convention Against Torture, signed by both Afghanistan and the United States).

From speaking to the US military spokesman, it sounds as if the Americans feel they have now washed their hands of the detainees; when AAN asked if they were monitoring those transferred to make sure they were not being tortured or maltreated (as ISAF used to with Afghan detainees sent to the NDS), the spokesman said, “Please ask the Afghans. We’re no longer involved in detaining people in Afghanistan.”

However, the US is still legally bound up with the men’s fate. For the US, the principle of ‘secondary non-refoulement’ now holds, ie it, along with the Afghan state, would be responsible if a detainee were transferred to another country and was subsequently tortured. To actually hold a state to account in this matter would need courts and lawyers ready to challenge it, and even if Afghanistan does not have these mechanisms, the US certainly does. As for Bagram itself, there have not been accusations of torture being used there (unlike in NDS and police stations). (8)

Discussions with Tunis over its two detainees have already started. Tunisian diplomats reportedly asked for the matter to wait until the country’s presidential elections were over (the poll was held in December). Tunisia has managed to come through the Arab Spring with democratic elections and reasonable civil liberties, so the two men may, therefore, be able to get home. However, sending Abu Ikhlas back to Egypt when he has lived in Afghanistan for almost 30 years (longer than he spent in Egypt) and has an Afghan wife and presumably children might be controversial. Moreover,  as one Afghan official said, “Egypt is in a storm.” (For more on Egypt’s record of dealing with Islamists – mass detentions, torture and executions, see Human Rights Watch’s country report.)

Of Tajikistan’s Guantanamo Bay returnees, three were put on trial and found guilty of membership in the Islamic Movement of Uzbekistan (IMU) and are now serving sentences; the other 11 were freed. The sons of Mullah Amruddin, if that is who the two Tajik detainees are, could well have refused to go back. As for the Uzbek at Bagram, it would be difficult to envisage repatriating anyone to Uzbekistan with its nasty record of state torture. (See Human Rights Watch’s reports on Tajikistan and Uzbekistan).

According to our reading of the law, unless the six have been quietly charged, their detention is now illegal. However, the Afghan state has inherited a problem not of its own making and one which America, with all its clout, failed to resolve. Its options are limited and getting the men out of the country will not be easy. It could be that the six languish illegally and in limbo at Bagram for some time to come.

Afghan detainees also still at Bagram

The other legacy of US detentions in Afghanistan is the actual detention facility on Bagram airbase itself. The government has decided to retain it as Afghanistan’s high security jail, under the control of the Ministry of Defence (other prisons are under Ministry of Interior control). There are still about 750 Afghans who were originally detained by US forces, unilaterally or in joint operations, who have gone on trial at the Afghan court on the base, the Justice Centre in Parwan, and been sentenced to terms of imprisonment. All have had their sentences upheld by the appeals and Supreme Court.

Joining them now are hundreds, possibly thousands of high security prisoners convicted of insurgency-related crimes who were captured by Afghan forces and have gone through the normal Afghan criminal justice system. The government wants to separate these men from ordinary criminals to limit proselytization of jihad; prisons around the world are classic places for anti-government, militant ideologies to spread.

Batches of convicted security prisoners are now being transferred from the main Kabul jail, Pul-e Charkhi, to Bagram. When AAN spoke to General Barakzai in mid-February, about 350 prisoners had already been transferred. “Then, when the Pul-e Charkhi prisoners have all been transferred, we will start getting them from the provinces, until Bagram is full or the dangerous prisoners are finished. We have space for about 6000.”

Some newly arrested security detainees are also now being brought directly to Bagram and held there for interrogation while the Attorney General’s Office decides if they should be released or prosecuted. If they are to be prosecuted, the detainees also then stay at Bagram to await trial.

General Barakzai said most of the fresh detainees have been detained by Afghan National Army Special Operations Forces, but some have been captured by the regular army or NDS units. He said the three categories of detainees are held separately (ie suspects, those awaiting trial and the convicted) and foreigners are also segregated from Afghans. Bagram is a much more expensive place to hold a detainee or prisoner (one official told AAN it cost double to hold a prisoner than in Pul-e Charkhi), but it is also much more secure, in the middle of the airbase which is still under US-Afghan control.

 

(1) The lawyers of one of the Pakistani detainees, who was transferred to Pakistan in September 2014, have said he has disappeared there. On 27 January 2015, they took the Islamabad government to court to try and force a disclosure of his whereabouts.

(2) The Internment Serial Number (ISN) is unique to each detainee. They are crucial for tracking detainees because in some documents their names are not given or the spellings vary.

(3) The Senate report also said the CIA had been unable to explain the presence of a waterboard in a photo at the facility.

(4) Central Asian jihadi groups are a confusing and changing bunch. The Islamic Movement of Uzbekistan is the oldest; it emerged in the early 1990s after the Karimov government cracked down on all legal opposition groups in the country and some Islamist activists went underground. It is also best known in Afghanistan because of its presence during the Taleban era, fighting with the Taleban against the Northern Alliance in exchange for a safe haven. In 2001, IMU fighters fled to the Tribal Areas of Pakistan and continue to put in appearances this side of the border.

The Islamic Jihad Union split from the IMU in 2002. Originally founded by Uzbeks, it meanwhile seems to have concentrated on recruiting Turkish and also German-Turkish fighters (a detailed paper on IJU here).

The Islamic Movement of Turkestan mentioned to in the US files refers to an old split/rebranding of the IMU. Nothing really came of this splinter organisation which makes it worrying that membership forms the substance of US accusations against the two Tajik detainees.

(Here, it does not refer to an Uighur Islamist group by the same name (sometimes also called the East Turkestan Islamic Movement) which Beijing often blames for sedition, for example, for accusing it of carrying out an alleged terrorist attack on Beijing’s Tiananmen Square in late 2013. Even here, as China analyst Andrew Small wrote in July last year, it is unclear that such an organization even existed after the fall of the Taliban in Afghanistan in 2001.”)

(5) Detainee Review Boards periodically assessed the status of detainees and could recommend continuing internment, prosecution or reconciliation and rehabilitation (for Afghan detainees) or release (immediately for Afghan detainees and after arrangements could be made for non-Afghans).

In the case of the two Tajik brothers, the Board had decided they had met the criteria for internment, ie it believed they had “took planned, authorised, took part in or aided the terrorist attacks that occurred on September 11 2001” or “harboured those responsible for the attacks” or because they “were part of or substantially supported Taliban or Al-Qaida forces or associated forces that are engaged in hostilities against the US or its coalition partners” (the wording comes from the very vague 2001 Congressional Authorisation of Presidential Force – for detail see this). The two had been classed as not a threat, ie “taking into account the detainee’s potential for rehabilitation, reconciliation and eventual reintegration into society, by a preponderance of the information,” the Board had decided “internment was not necessary to mitigate the threat [they] poses”; and, given they were non-Afghans and non-US nationals, it had recommended them for transfer to a third country for criminal prosecution (rather than the other two choices “participation in a reconciliation programme or release”).

(6) See also mentions of Abu Ikhlas here, here and his alleged associations with one of the Guantanamo Bay detainees here.

Brian Glyn Williams, a professor of Islamic History and author of a biography of General Abdul Rashid Dostum, also mentions him in an account of the US fight with the Taleban in Kunar:

Fears that Kunar would turn on the coalition seem to have been borne out. Fighting began in late 2002 as the 82nd Airborne arrived in the valley. Kashmir Khan, the Hizb-i-Islami commander who had earlier fought against the Taliban, seemed to be leading the revolt. In an effort to flush out Kashmir Khan’s Hizb-i-Islami fighters as well as dozens of foreign fighters led by Abu Ikhlas al-Masri, who was declared al-Qa`ida’s amir in Kunar and Nuristan, the United States launched Operation Mountain Resolve on November 7, 2003. The operation involved a Soviet-style airdrop into the Hindu Kush mountains by the U.S. 10th Mountain Division and resulted in the killing of Hizb-i-Islami commander Ghulam Sakhee, a few clashes with the enemy, and the discovery of some minor weapon caches.

(7) At AAN, we spent a whole morning looking through Afghan law to see what legal options the state might have.

The clock for the prosecuting authorities (the attorney general) starts ticking from a person’s detention (or in this case handover), ie for two Tunisians, 12 December 2014, for the others, some time, unspecified, but, according to the US military, a little before 9 December 2014. 

Procedure

The 2014 Criminal Procedural Code (art 100) says an “accused person” can be detained for seven days before he must be charged and sent for trial or released. If he is suspected of having committed a junha (a lesser crime with a punishment or 10-16 years in jail), his time in custody before can be extended for ten days, ie to 17 days; if suspected of a jenayat (a more serious crime with a punishment of 16-20 years in jail), his time in custody can be extended by 15 days. The Attorney General’s Office can order these extensions. A court can also authorize a further extension of 10 (junha) or 30 (janazat) days. This means a detainee can be legally held for a maximum of 27 or 75 days.

Once a case has gone to court (art 101), the primary court can order an extension of 30 days, the Appeals court one of 30 days and the Supreme Court 60 days (not more than 120 days in total).

If the detention was dated from the men’s transfer to the Afghan authorities, the maximum time without trial they could be legally held would be 75 days, which would mean the Tunisians should be sent to court or released by 23rd/24th February, slightly earlier for the others. If any case went to court, the Tunisians could legally be held until about 25 June and again slightly earlier for the others. After that, they should have been sentenced or freed.

(8) British lawyers representing Afghans detained by British forces did not appeal after they were transferred to Bagram. British courts had banned the military from transferring detainees to any Afghan facility because of the risk of torture. It seems Bagram was considered safe enough for an appeal to likely have been unsuccessful. (See reporting here and here.) UNAMA also reported that no detainee whom they interviewed who had been held by the Afghan authorities at Bagram reported having been tortured there.

Tagged with: , , , , ,
Thematic Category: Rights & Freedoms