Archive for December, 2007

In the first part of this article, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, looked at the background to the recent release of 13 Afghans from Guantánamo, explained that nine of these men had been identified, and related the stories of the first of the three to be captured, in November and December 2001, at the height of the US-led invasion of Afghanistan. In this second part, the focus shifts to the stories of the remaining six, who were captured long after the fall of the Taliban, when the US military faced a low-level insurgency in the south and east of the country.

Inside Pol-i-Charki prison, Kabul.

The other six men released from Guantánamo last week and sent to Pol-i-Charki prison in Kabul were among the 100 or so detainees –- almost all Afghans –- who were captured between December 2002 and August 2003, when, with the exception of 29 mostly “high-value” detainees, transferred to Guantánamo in September 2004, September 2006, and throughout 2007, the last of the Guantánamo prisoners were processed. Although many more Afghans captured during this period were released without being sent to Guantánamo, and others continued to be held in Afghanistan, those who were sent to Cuba were mostly innocent men. Around 60 percent –- including at least 17 men who were working for the Karzai government –- were betrayed by opportunistic rivals, who were all too aware that the Americans were both gullible and lazy, and would not make any attempt to investigate the men’s histories, and another 30 percent were bystanders rounded up arbitrarily after attacks on US forces.

The teachers

Two of these men were teachers. 40-year old Abdul Ghafour ran a small school in his village in Paktia province, and rarely left the area because his mother was ill. When US and Afghan forces came knocking on his door in the middle of the night on February 7, 2003, he thought that they were robbers, and went to the roof and fired a few warning shots. When the Americans opened fire in response and summoned fighter jets, he realized he had made a mistake, and he then let them in and was arrested, but at no point did anyone explain to him why they wanted to search his house in the first place. 37-year old Abdul Matin, a science teacher, had been living in Pakistan during the Taliban years, but returned to Afghanistan in February 2002 when the Karzai government called for people to help rebuild the country. He said that he was betrayed by local enemies, who knew that his father was wealthy, when he refused to pay a $30,000 bribe.

The shopkeeper

The story of Abdullah Wazir, who was 24 years old when he was captured, appears to be a case of opportunism on the part of the Pakistani police. A shopkeeper in a village near Khost, he said that he was on a bus, making one of his regular visits across the border to Pakistan to buy batteries and tires for his shop, and to mend the broken glass on his satellite phone, when the bus was stopped and searched by Pakistani police. Fearing that, if the police saw his phone, they might try to take his money because they were “corrupt,” he explained that he gave his phone to Bostan Karim, an acquaintance from his village, with whom he had spent three days preaching five years before, and asked him “to hold it for two minutes.” Unfortunately, he added, “a soldier on top of the bus saw me give the phone to Karim.” He then “told another soldier that I had passed something to another person,” and both men were then arrested, taken to a jail and interrogated. Although Wazir reported that “the boss of the jail told me that I will released tomorrow, in the afternoon they handcuffed our hands and took us somewhere else [Bagram, presumably]. We spent six to seven months at the place they took us. From there, they brought me here.”

Although Wazir was accused of being a member of the Taliban (an allegation that he denied), what particularly counted against him was his alleged association with Karim, who is still in Guantánamo. A preacher and also a shopkeeper, Karim, who was 33 years old when he was captured, was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone.” In a demonstration of the thinness of so many of the allegations that make up the “evidence” in Guantánamo, it was also alleged that he was “possibly identified as an al-Qaeda associate, planning landmine attacks in Khost,” and was “possibly identified as a person likely to have communicated with Arab al-Qaeda members operating in Peshawar, Afghanistan [sic], and working directly for Arab al-Qaeda in the Khost province.”

Karim maintained that the allegations had been made by another detainee, Obaidullah (who is also still in Guantánamo), who had been a partner in his shop, but had fallen out with him in a dispute over money. From Obaidullah’s statements in his own hearings, it’s clear that, while being interrogated by US forces in Bagram, he admitted making up allegations against Karim. In his military review in 2005, he responded to an allegation that Karim “is thought to be a Taliban commander who is getting funding from the Taliban or the Arabs” by saying, “I accepted this by force in Bagram. They told me in Bagram that Karim is one of the Taliban commanders and they forced me to say yes. I am not aware if he is a Taliban commander.”

When asked who forced him to “say things,” Obaidullah said, “The first time when they [US forces] captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.”

The “Commander”

Also transferred was Gul Chaman (also known as Commander Chaman), who was 40 years old at the time of his capture. A former mujahideen fighter against the Soviet Union, Chaman had a colorful history. In the turmoil of the brutal civil war that followed the collapse of the Soviet government in the early 1990s, he fought for six months against the forces of Ahmed Shah Massoud, the charismatic Tajik who led the Northern Alliance (and who was assassinated by al-Qaeda operatives two days before 9/11), as a member of Hezb-e-Islami Gulduddin (HIG), a military faction led by Gulbuddin Hekmatyar. A virulently anti-American warlord, Hekmatyar had, nevertheless, been the main recipient of billions of dollars of US aid in the 1980s, because he was the favored warlord of the ISI (the Pakistani intelligence services), who were responsible for funneling US aid to the mujahideen.

Chaman explained to his tribunal that he then switched sides, joining Massoud, and insisted that he did not join the Taliban after their rise to power in 1994. “When the Taliban movement started,” he said, “[they] captured Logar and then they started coming to Azrah, which is my district. The Taliban collected ten guys by the name of Chaman’s people and killed and executed them right on the spot. I was there and they did not capture me.” He explained that they were “my cousins and my day laborers,” and that the Taliban would not let him give them a proper burial. “After that,” he continued, “I was against the Taliban. I did not fight but I tried my best to fight them through propaganda.”

Accused of being “heavily involved in the drug trade and other illegal activities in Kabul,” Chaman denied the allegations, claiming that, after Hamid Karzai came to power, he made a few visits to Pakistan with a delegation connected with the chief of intelligence, and provided some information on HIG. He added, “I was doing work against the Taliban.”

The circumstances of his capture apparently had nothing whatsoever to do with this back story. Instead, it seems that he was seized and sent to Guantánamo because a young man called Mohammed Mustafa Sohail, who was working for an American contractor and who is still held in Guantánamo, accused him of stealing a computer from the Americans that he had actually stolen himself. Sohail explained that he accused Chaman after being interrogated for 68 hours in Kabul, when an interrogator “tortured and threatened me with a gun to my mouth, to try to make me say something,” but whether or not there was any truth in this story it came too late for Chaman, who had already been handed over to the Americans at Bagram by the local intelligence chief.

The pro-American rivals

Two others, whose stories are in some ways the most shocking of the nine, were among six men captured in Gardez in July 2003, who were resolutely opposed to the Taliban and al-Qaeda. 32-year old Abdullah Mujahid was the police chief in Gardez and the security chief for Paktia province after the fall of the Taliban, and had just been promoted to a job protecting the highways of Kabul at the Interior Ministry. At the start of the US-led invasion, he met US Special Forces in Logar and invited them to Gardez, where he negotiated the rent of the camp that they used as their base, and he also fought alongside them during Operation Anaconda, a mission to oust al-Qaeda remnants from the Shah-i-Kot valley in Paktia province in March 2002.

Haji Muhammad Hasan, Abdullah Mujahid’s father, holds up a photo of his son. Photo by Declan Walsh.

According to Mujahid’s lawyers, he was so well respected that residents of Gardez and Paktia sent several petitions to the US administration, pointing out that he was “instrumental in helping establish schools, including schools for girls” in the region. Explaining the circumstances of his arrest, he said that two Americans detained him and asked him about two military commanders that he knew, who were accused of stealing. When he denied the story, he said that one of the men told me that I wasn’t telling the truth about these people, so you belong in Cuba,” and added, “It appears that the decision was made to send me to Cuba already.”

In Guantánamo, it was also alleged that Mujahid was “fired from his appointed position due to suspicions of collusion with anti-government forces,” and that he later attacked US troops in retaliation, but Farah Stockman of the Boston Globe, who visited Gardez to find out more about his story, noted that he fell out of favor with the American forces operating in the area, who wanted to replace him with a professionally trained police chief, and that after his new job in Kabul was arranged, the Special Forces commander actually advised him to leave Gardez, warning him that he was at risk of being sent to Guantánamo if he remained.

The US forces seem to have been particularly upset by Mujahid’s response to the murder of Jamil Nasser, an Afghan prisoner (and a member of the new Afghan army) who was killed by Special Forces soldiers while in custody at a US base near Gardez in March 2003. After Nasser’s death, the US military insisted on transferring his seven surviving colleagues, who had all been tortured and beaten horrendously, to Mujahid’s custody. According to the Crimes of War Project, a Washington human rights group that investigated the abuse, the Special Forces commander “threatened to kill Mujahid if he released the prisoners,” and it may have been his subsequent actions that convinced the Americans not only to remove him from office, but also to do it by sending him to Guantánamo. Farah Stockman reported that Mujahid “ordered that they [the injured men] be given medical treatment and mattresses,” and then “described the prisoners’ injuries to Afghan military prosecutors, who later wrote a report recommending that the American soldiers be punished.”

In addition, the theft that was allegedly responsible for getting Abdullah Mujahid sent to Guantánamo seems to have been reported by another of the detainees released last week, Dr. Hafizullah Shabaz Khail, a 56-year old pharmacist from Zormat, south of Gardez, who in turn blamed Mujahid for his imprisonment. Approached by the town elders after Hamid Karzai first came to power as the head of the interim post-Taliban government, Khail served as the mayor for six months until an official appointment was made, and then continued to help out with security. “While I was mayor in Zormat,” he said, “there were no problems with the Americans. I met with American commanders several times … We even took pictures together.”

Arrested after capturing some thieves who were working for Taj Mohammed, the head of security in Zormat, he suggested that Mujahid, who was Mohammed’s boss, then arranged for the Americans to arrest him. If this is the case –- and lawyers for the two men suggested that they were bitter enemies –- then at least part of the reason that both men were in Guantánamo was because of allegations they had made against each other. The fact that the US authorities failed to notice this indicates that they had no interest in cross-referencing cases or investigating the truth of assertions made against those in their custody. Unlike Mujahid, who was cleared for release two years ago, Khail was not cleared for release until the last few months, even though, as with his rival, several local tribes sent a petition to the US authorities confirming his many contributions to their community.

Suppression of witnesses at Guantánamo

Mujahid’s story was also notable because it was used by the journalist Declan Walsh to demonstrate one of the many failures of the tribunal process at Guantánamo. These tribunals –- the Combatant Status Review Tribunals (CSRTs) –- were dreamt up as a deliberately inadequate response to a decisive Supreme Court ruling, in June 2004, that the Guantánamo detainees had habeas corpus rights; in other words, that they had the right to challenge the basis of their detention. Initially criticized by lawyers and human rights activists because the detainees were denied legal representation, and were prevented from either seeing or hearing secret evidence against them, which could therefore have been obtained through torture, coercion or bribery, the tribunals were recently savaged by military officers who had taken part in them, who condemned them for relying on generalized and often generic evidence that had nothing to do with the detainees in question, and who indicated, moreover, that they were merely designed to rubber-stamp their prior designation as “enemy combatants” without rights, so that they could be held indefinitely without charge or trial.

Declan Walsh’s contribution was to demolish the US military’s assertion that the detainees would be allowed to call witnesses, if they were “reasonably available.” No-Hearing Hearings, a report by researchers at the Seton Hall Law School, who analyzed documents released by the Pentagon in 2006, established that, although the CSRT process “provided that detainees could call witnesses … no witness from outside Guantánamo ever appeared,” often because the tribunal claimed that the request had been forwarded to the State Department, but that no reply had been received.

In June 2006, after deciding to test how difficult it was to track down witnesses, Walsh focused on the case of Abdullah Mujahid, just one of many Afghans who asked his tribunal to make a few phone calls to verify his story. Walsh did just that, and within three days found three witnesses that the Pentagon had apparently been unable to contact. One was working in Washington DC, teaching at the National Defense University, and the other two were in Afghanistan.

A call to President Karzai’s office located Shahzada Masoud, an adviser on tribal affairs, who confirmed that Mujahid had accepted a job protecting the highways in Kabul and “was given a lavish transfer-of-power ceremony attended by government dignitaries,” and Walsh obtained the phone number of Gul Haider, a defense ministry representative and former Northern Alliance commander, from a government official in Gardez. Haider confirmed that Mujahid sent 30 of his men to assist the Americans during Operation Anaconda, and said he had not heard anything to support the Americans’ claims that he had turned against them. Pointing out that political rivalries were to blame for his arrest, and that someone had made false allegations, Haider said, “Afghanistan has many problems –- between tribes, Communists, the Taliban. That’s why people like Abdullah, who are completely innocent, end up in jail.”

While I wait to find out if any of these men will be released from Pol-i-Charki –- and if others like Bostan Karim, Obaidullah and Mohammed Sohail will be released from Guantánamo –- I have to conclude that Gul Haider’s comment could serve as an epitaph for most of the Afghans in Guantánamo, and that it’s a grim conclusion to reach on the eve of the prison’s sixth anniversary.

This article is drawn partly from chapters in my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

In the first of two articles, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, examines the system of unaccountable prisons run by the US military in Afghanistan, dissects some myths and lies about released detainees, and tells the stories of three of the Afghans just released from Guantánamo. Both articles were published on CounterPunch as a single article.

In the last week, while the media’s attention has focused on the release of two Sudanese humanitarian aid workers from Guantánamo, the 13 Afghans who were flown to Kabul at the same time have barely been mentioned. The reasons for this oversight are clear: firstly, because one of the Sudanese ex-detainees, Adel Hamad, a hospital administrator, had become something of a celebrity after his enterprising lawyers posted a video about his case on YouTube, which prompted a group of campaigners to establish a website devoted to his plight; and secondly, because Hamad and his compatriot, Salim Adem, were released on their return, and various reporters were able to meet them.

No such luxuries were reserved for the Afghans. Few of their stories are known at all, and on their return to Afghanistan they were promptly imprisoned in a wing of Pol-i-Charki, Kabul’s main prison, which was recently refurbished by the US authorities. The oversight is disturbing because, for the most part, the stories of the Afghans demonstrate colossal ineptitude on the part of the US military and Special Forces in Afghanistan, at least equivalent to the failures of intelligence that led to the capture of Adel Hamad and Salim Adem. In addition, the imprisonment of these men in a prison wing refurbished by the US authorities raises uncomfortable questions about the role of the US military in Afghanistan, over six years after the invasion of Afghanistan in October 2001.

Pol-i-Charki prison, Kabul.

Unaccountable US prisons in Afghanistan

Despite the official inauguration of Hamid Karzai as the President of post-Taliban Afghanistan –- and the country’s first democratically elected leader –- on December 7, 2004, the US military has continued to behave like an occupying power, holding hundreds of prisoners at Bagram airbase (formerly used to process detainees for Guantánamo), including foreigners as well as Afghans, and an unknown number of other prisoners in a variety of secret prisons and forward operating bases. Cut off from all outside scrutiny (except for representatives of the International Red Cross), these prisoners do not even have the limited legal representation available to the detainees in Guantánamo.

In March 2005, when journalists Adrian Levy and Cathy Scott-Clark visited Afghanistan, they met Dr. Rafiullah Bidar, a regional director of the Afghan Independent Human Rights Commission, which had recently been established –- with funding from the US Congress –- “to investigate abuses committed by local warlords and to ensure that women’s and children’s rights were protected.” Ironically, Bidar told the reporters that what his job actually entailed was registering complaints against the US military. “Many thousands of people have been rounded up and detained by them,” he said. “Those who have been freed say that they were held alongside foreign detainees who’ve been brought to this country to be processed. No one is charged. No one is identified. No international monitors are allowed into the US jails. People who have been arrested say they’ve been brutalized –- the tactics used are beyond belief.” Speaking anonymously, a government minister also complained, “Washington holds Afghanistan up to the world as a nascent democracy and yet the US military has deliberately kept us down, using our country to host a prison system that seems to be administered arbitrarily, indiscriminately and without accountability.”

Nearly three years later, this situation has not changed. Lawyers at the US-based International Justice Network have filed a potentially ground-breaking habeas corpus claim on behalf of a detainee at Bagram, but the system as a whole –- like that in Iraq, where at least 15,000 detainees are held without charge or trial –- remains impervious to outside scrutiny.

Until April 2007, however, the detainees released from Guantánamo –- 152 of the 220 held since the prison opened in January 2002 –- sidestepped this unaccountable prison system and were released on their return to Afghanistan, but this has changed with the US-financed refurbishment of Pol-i-Charki, and it is not yet clear whether the 32 detainees returned since April 2007 have simply exchanged Guantánamo for an even less accountable form of indefinite detention without charge or trial.

Myths and lies: detainees who returned to the battlefield

It’s probable that the excuse for imprisoning the Afghans returned in the last eight months is the US military’s oft-repeated claim that dozens of released detainees have returned to the battlefield. If so, this would be grossly disingenuous. Not only are the figures disputed, with only six recognized by those who have studied the stories in any detail, but the US administration has also refused to acknowledge the shocking truth about its own responsibility for releasing these men.

The Taliban freed from Guantánamo include Abdullah Mehsud, a Pakistani Taliban commander, released in March 2004, who killed himself with a hand grenade after being cornered by security forces in Pakistan in July 2007. Mehsud came to prominence in October 2004, after his men kidnapped two Chinese engineers working on a dam project in Waziristan, when he explained that, at the time of his capture in November 2001, he was carrying a false Afghan ID card, and that he had successfully maintained throughout his detention that he was an innocent Afghan tribesman.

Another was Mullah Shahzada, released in May 2003, who gave the Americans a false name and claimed that he was an innocent rug merchant. “He stuck to his story and was fairly calm about the whole thing,” a military intelligence official told the New York Times. “He maintained over a period of time that he was nothing but an innocent rug merchant who just got snatched up.” After his release, Shahzada seized control of Taliban operations in southern Afghanistan, recruiting fighters by “telling harrowing tales of his supposed ill-treatment in the cages of Guantánamo,” and masterminded a jailbreak in Kandahar in October 2003, in which he bribed the guards to allow 41 Taliban fighters to escape through a tunnel. His post-Guantánamo notoriety came to an end in May 2004, when he was killed in an ambush by US Special Forces.

While right-wing commentators seized on the release of Mehsud and Shahzada as evidence that no one should ever be released from Guantánamo, a rather different interpretation was offered by Gul Agha Sherzai, the post-Taliban governor of Kandahar, who pointed out that they would never have been freed if Afghan officials had been allowed to vet the Afghans in Guantánamo. “We know all these Taliban faces,” he said, adding that repeated requests for access to the Afghan prisoners had been turned down. Sherzai’s opinion was reinforced by security officials in Karzai’s government, who, off the record, blamed the US for the return of Taliban commanders to the battlefield, explaining that “neither the American military officials, nor the Kabul police, who briefly process the detainees when they are sent home, consult them about the detainees they free.”

Of the 13 Afghans released from Guantánamo last week, nine have been identified. The rest, like dozens of those released in the last 18 months, did not have lawyers (who are told when their clients have been released), and as a result even their identities are unknown. The Pentagon never reveals the names of the detainees it frees, and without representatives of the world’s media on the ground in Kabul, as they were for the first batches of released detainees in 2002 and 2003, these men remain as lost to the world as they were in Guantánamo.

Taliban conscript or Taliban commander?

The first of the nine to be captured, Abdul Rauf Aliza, remains something of an enigma to this day. Seized in November 2001 during the fall of Kunduz, the last Taliban stronghold in northern Afghanistan, he was held, with thousands of other men, in a filthy, overcrowded prison in Sheberghan run by General Rashid Dostum, one of the leaders of the anti-Taliban Northern Alliance, and was then transferred to the US prison at Kandahar airbase with nine other Afghan prisoners.

One of the nine, Jan Mohammed, a baker from Helmand province who had been forcibly conscripted by the Taliban, was one of the first detainees to be released from Guantánamo in October 2002. After his release, he explained that the decision to transfer him to Kandahar came about because some of Dostum’s men “told US soldiers that he and nine others were senior Taliban officials.” “They came and took ten strong-looking people,” he told the journalist David Rohde. “Only one of those ten was a Talib.”

It’s probable that the solitary Taliban member transferred to Kandahar with Jan Mohammed was Abdul Rauf Aliza, who was identified by the US authorities as Mullah Abdul Rauf, a Taliban troop commander. Although Aliza claimed that he was conscripted by the Taliban, who said they would take his land if he refused, and insisted that he only worked for them as a cook, several released Afghans explained to the journalist Ashwin Raman that Mullah Abdul Rauf was one of three Taliban commanders in northern Afghanistan held in Guantánamo. They told Raman that he had not been so cautious with his identity while detained in Camp X-Ray, when he “repeatedly pleaded with the Americans to let many of the detainees free,” saying, “These are no Talibs, I am the real Talib.”

While this suggests that Abdul Rauf Aliza and Mullah Abdul Rauf are one and the same, it’s possible that the Taliban commander was hiding his true identity behind a false name, as was the case with Abdullah Mehsud and Mullah Shahzada. According to the Pentagon’s records. Aliza was only 20 years old when he was captured, which would have made him an extremely youthful troop commander, but the truth, as with so much of Guantánamo’s story, may never be uncovered.

“Number three in Taliban intel”

Two of the other released detainees were captured in December 2001. 26-year old Gholam Ruhani was seized with Abdul-Haq Wasiq, the Taliban’s deputy minister of intelligence, and one of the few senior Taliban figures captured by the Americans, in a potentially perilous Special Forces operation in Ghazni, south of Kabul. At the time, Ghazni was a Taliban stronghold, but when the Special Forces received a tip-off that a local warlord had arranged a meeting with Qari Amadullah, the Taliban’s minister of intelligence, in which, it was suggested, Amadullah might provide information that would lead to the capture of Osama bin Laden, their commander, Gary Berntsen approved the mission.

In the end, Amadullah did not turn up, and clearly had no intention of doing so. Safely ensconced in Pakistan, after escaping from Afghanistan, he spoke to a journalist in late December, interrupting the interview to take a phone call, and then declaring, “I am personally requested by Mullah Omar and Sheikh Osama to go to Uruzgan and take the command of new guerrilla war preparations, which will start as soon as possible, and you will hear the news in papers and on BBC.” Unsurprisingly, having effectively given US forces his itinerary as a result of this loose talk, he was killed in a US air strike a few days later. In the same interview, however, he also spoke about Abdul-Haq Wasiq. He said that Mullah Omar, who, he claimed, was living in a safe place in the mountains north of Kandahar, had asked him to visit, but he had been unable to do so, “because a lot of people know me, and I am frightened they will capture me somewhere on the road. So I sent my assistant Mullah Abdul-Haq Wasiq to Kandahar. Unfortunately he was captured by American agents in Ghazni.”

This suggests that Wasiq either made his own negotiations with the Americans in Ghazni, or was invited and then betrayed by the local warlord, because after the meeting he was duly arrested, along with Gholam Ruhani, by the Special Forces operatives, who duly declared that they were “the number two and three in Taliban intel.”

In Guantánamo, Wasiq, who is still imprisoned, has been coy about his role, claiming that he was forced to join the Taliban, and that he sometimes acted as the deputy minister of intelligence, but only to combat “thieves and bribes.” This did not convince his tribunal, who greeted him with the words, “Good afternoon, Mr. Minister. Seldom before have we had someone of such prestige and responsibility.” Ruhani, however, was adamant that he was not the “number three in Taliban intel.” He said that he was a Taliban conscript, who fulfilled his duties in a clerical capacity to avoid being sent to the front lines, and explained that he was asked to attend the meeting between the Taliban and the Americans because he had learned a little English while studying electronics manuals in a store run by his elderly father. “I turned over my pistol and ammunition to the American, as an act of faith, because it was a friendly meeting,” he said. “I expected to leave the meeting and return to my life, my shop and my family. Instead, I was arrested.”

The foot soldier

The second man, 22-year old Omar al-Kunduzi, was one of around 250 detainees captured by Pakistani forces after crossing the border from Afghanistan to Pakistan in December 2001. Born in Afghanistan, he had been living in Saudi Arabia since the Soviet invasion, when he was just one year old, but returned to Afghanistan in September 2001. He told his lawyer that he wanted to fight in Chechnya (as did several other detainees from the Gulf countries), and added that Chechen representatives had told him to undertake military training in Afghanistan. He explained that he had trained at the al-Farouq camp (a camp for Arabs, established by the Afghan warlord Abdul Rasul Sayyaf, but associated with al-Qaeda in the years before 9/11), but had a distaste for both the Taliban and al-Qaeda on religious grounds, insisting that both groups were responsible for killing Muslims, which he thought was wrong. This, too, was an explanation proferred by numerous detainees.

In his tribunal at Guantánamo, he said that he was staying at a house in the eastern city of Jalalabad when the city fell in November 2001, and he explained that everyone in the house got into a pick-up truck and drove to the Tora Bora mountains, where they stayed in a cave for a month. No mention was made of Osama bin Laden, Ayman al-Zawahiri or any other senior figures in al-Qaeda or the Taliban, who were also in Tora Bora at this time, and who all escaped safely to Pakistan. Instead, al-Kunduzi explained that he left for Pakistan with a group of Arabs, Pakistanis and other Afghans, and was arrested on the border, which surprised him. “I did not expect them to hand me over to the Americans,” he said, “I thought they would treat me like an Afghani.”

This article is drawn partly from chapters in my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

Click here for the second part of this article.

Nadim Mahjoub of Resonance FM has put together an excellent radio show about Guantánamo, for his show Middle East Panorama, based on three talks from the launch of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press), at Bookmarks, in central London, on November 28. The featured speakers are Andy Worthington, the author of The Guantánamo Files, ex-Guantánamo detainee Moazzam Begg, author of Enemy Combatant and a spokesman for the human rights group Cageprisoners, and Zachary Katznelson, senior counsel for Reprieve, the London-based legal charity that represents dozens of Guantánamo detainees, who has made 20 visits to Guantánamo to meet his clients.

On Monday, just three weeks away from Guantánamo’s sixth anniversary, military judge Captain Keith Allred dealt what appeared to be a severe blow to the legitimacy of the Military Commissions –- the unprecedented trial system established to try Guantánamo detainees for war crimes –- by ruling that he would undertake a review to determine whether Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, was actually a Prisoner of War, as defined by the Geneva Conventions.

For an administration that has done all in its power to deny its legal responsibilities as a signatory to the Conventions, this was worrying news indeed, but just three days later Capt. Allred delivered his verdict, ruling that Hamdan was not entitled to be regarded as a Prisoner of War, and that his trial by Military Commission could proceed. Noticeably, however, his dissent, though fleeting, appeared so well argued that doubts remain as to whether he made up his own mind or was subjected to pressure from higher up the chain of command.

The Military Commissions, which were dreamt up in November 2001 by Vice President Dick Cheney and his advisor David Addington, and were intended to sidestep both the US courts and the traditional avenue of military prosecution via courts martial, have had a rocky history. From the moment that they were announced, concerned lawyers and human rights activists condemned them. In Guantánamo: What The World Should Know, one of the first books about Guantánamo, Michael Ratner of the Center for Constitutional Rights described them as “a system heavily slanted towards conviction,” explaining that they were unacceptable because they “were going to be held outside the United States, totally in secret, with military officers as judges,” and because “the prosecution was going to be allowed to bring in any kind of evidence, including hearsay evidence.”

The most savage criticism, however, has come from the government-appointed military lawyers assigned to defend the detainees. Lt. Cmdr. Charles Swift, who took Hamdan’s case in 2004, rapidly discovered the flaws with the system during his first visit with Hamdan, explaining, in an interview with Vanity Fair’s Marie Brennan in March this year, that these included “no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, [and] clients represented even if they declined legal counsel.”

Swift also outlined his perception of the reasons for establishing the Military Commissions. “The whole purpose of setting up Guantánamo Bay is for torture,” he said. “Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively –- what some people call torture. Guantánamo and the military commissions are implements for breaking the law.”

Working with Neil Katyal, a civilian lawyer, Swift pursued Hamdan’s case to the Supreme Court, which, in a shocking blow to the administration, ruled in June 2006 that the Commissions were illegal under US law and the Geneva Conventions. Undeterred, the administration seized on a comment made by Justice Stephen Breyer –- that “Nothing prevents the President from returning to Congress to seek the authority he believes necessary” to reestablish the Commissions –- and, just three months later, persuaded a craven Congress to reinstate them in the Military Commissions Act (MCA), a hideously flawed piece of legislation that also stripped the detainees of their habeas corpus rights, established in another significant Supreme Court ruling in June 2004.

Swift, meanwhile, was passed over for promotion, ending his military career under an “up-or-out” system devised by the Pentagon, but he has since taken a job at Emory University School of Law in Atlanta, and continues to work on Hamdan’s case as a civilian lawyer. His successor, Major Thomas Roughneen, a former New Jersey prosecutor who served in Iraq during the US-led invasion, has been no less forthright in criticizing the Commissions. In August, he told Carol Rosenberg of the Miami Herald, “It’s like the Titanic. You know someday the ship is going to sink. God almighty, let’s get there already.” Moreover, Swift and Roughneen are not the only defense lawyers to have taken a principled stand against the Commissions. Others include Major Michael Mori, who campaigned tirelessly for the Australian detainee David Hicks, and Lt. Cmdr. William Kuebler, who continues to do the same for his client Omar Khadr, a Canadian who was just 15 years old when he was seized after a gunfight in Afghanistan.

In the meantime, while the defense lawyers have been mounting an increasingly vocal and visible campaign of opposition, the Commissions themselves have stumbled from one disaster to another. No successful prosecution has yet been achieved, and the government’s only alleged victory –- in the case of David Hicks, who accepted a plea bargain in March this year, admitting that he provided “material support for terrorism” and dropping well-documented claims that he was tortured by US forces in exchange for a nine-month sentence to be served in Australia –- has been undermined in recent months by Col. Morris Davis, the Commissions’ former chief prosecutor. Davis noisily resigned in October, and has since complained loudly that the entire trial system was compromised by political interference.

Judge Allred’s part in this ongoing fiasco is no less significant. In June, when Hamdan was first hauled up before the reinstated Commissions, he and his colleague Col. Peter Brownback, who was presiding over the trial of Omar Khadr, derailed the whole process by throwing out the charges, pointing out that the MCA, which had authorized the revival of the Commissions, had mandated them to try “alien unlawful enemy combatants,” whereas the tribunals at Guantánamo that had made Hamdan and Khadr eligible for trial by Military Commission –- the much-reviled Combatant Status Review Tribunals, which also relied on secret evidence withheld from the detainees –- had only declared that they were “enemy combatants.”

Humiliated, the government responded by attempting to claim that the distinction was merely semantic (which it was not) and then declared that it would appeal the decision, causing further humiliation to its already damaged credibility when it transpired that the appeal court in question –- the Court of Military Commissions Review –- had not yet been established.

In August, a hastily convened court agreed with Col. Brownback that Khadr’s classification as an “enemy combatant” at his CSRT “failed to meet the requirements for jurisdiction set forth in the Military Commissions Act,” but explained that Brownback had “erred” in ruling that a CSRT was required to determine that Khadr was an “unlawful enemy combatant” as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. As a result of this decision, the trials of Hamdan and Khadr were reinstated, but the Commissions have continued to attract weighty opposition.

Khadr’s arraignment last month was notable for an explosive revelation, unveiled just 36 hours before the trial began, when the lead prosecutor, Major Jeff Groharing, informed Khadr’s defense team of the existence of “potentially exculpatory evidence” from a “US government employee,” who was an eye-witness to the gunfight in Afghanistan that led to Khadr’s capture. Khadr’s limping case will resume, with struggles over this “new” information, in 2008, but it’s arguable that Allred’s intervention on Hamdan’s behalf was even more significant.

On December 5, while most eyes were on the Supreme Court, which was looking at the detainees’ claims that the habeas-stripping components of the MCA were unconstitutional, Hamdan’s lawyers were explaining to Allred, in a makeshift courtroom in Guantánamo, that, although Hamdan was a driver for Osama bin Laden, he was, essentially, a civilian who got caught up in the war in Afghanistan, and should therefore be regarded as a Prisoner of War, as defined by the Geneva Conventions, which would mean that he was ineligible for trial by Military Commission.

Ignoring the case put forward by the prosecution –- who screened a video of bin Laden and Hamdan at a feast, and presented as a witness a US army officer who testified that Afghan forces under his command had captured Hamdan at a roadblock in November 2001, driving, alone, in a car that contained two surface-to-air missiles –- Allred’s decision to review Hamdan’s status essentially followed on from the dissent he expressed in June, when he explicitly stated that Hamdan had never received “an individuated determination” that he was an unlawful combatant, as required by the Geneva Conventions, and that without this determination he and other detainees were entitled to be treated as Prisoners of War.

In a four-page ruling, Allred cited various legal sources, and took exception to the position held by both the government and Congress, who have both argued that Hamdan’s CSRT was the equivalent of a status determination conforming to Article 5 of the Third Geneva Convention, which states that, should there be any doubt about the status of prisoners, who, like many of the Guantánamo detainees including Hamdan, were not part of a regular army in uniform, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Responding to the conclusion reached in Hamdan’s CSRT, on October 8, 2004, that he was “a member of, or affiliated with, al-Qaeda forces,” Allred declined to agree that this was equivalent to an Article 5 status determination, pointing out that the CSRT “did not address his entitlement to Prisoner of War status, cite or discuss the Geneva Conventions of Article 5, or address the lawfulness of the accused’s participation in hostilities,” because the government bodies that had established the tribunals had “ordered the CSRT to make a different determination: whether the accused was an “enemy combatant,” as defined … for the purposes of continuing his detention.” Consequently, he insisted, “Even if the Commission were to agree with the government that the 2004 CSRT process satisfied Article 5, it is clear from the Commentaries on the Geneva Convention that a second status determination must be made by a judicial officer for detainees the Detaining Power proposes to punish.”

You see what I mean? Capt. Allred appeared to have put together such a compelling case for Hamdan’s rights as a Prisoner of War –- and against the system of Military Commissions as they currently stand –- that his sudden decision to discard these well-honed arguments and to declare Hamdan an ”unlawful enemy combatant” smacks of interference from the highest levels of the administration, where Dick Cheney and David Addington, in particular, are undoubtedly determined not to relinquish the malign project that they first established six years ago.

For more on the Military Commissions, see my newly published book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on the Huffington Post.

Celebrations by the families, friends and supporters of the three British residents who returned from Guantánamo on Wednesday –- Omar Deghayes, Jamil El-Banna and Abdulnour Sameur –- were abruptly cut short when the Spanish government immediately requested the extradition of El-Banna and Deghayes for alleged ties with terrorists, even though the supposed evidence in Deghayes’ case was comprehensively demolished nearly three years ago, and, in El-Banna’s case, is strenuously denied by his lawyers. In March 2005, image recognition experts, commissioned by the BBC’s Newsnight, concluded that the figure in a grainy video of a Chechen training camp, which was supposed to be Deghayes, was in fact a militant named Abu Walid, who had later been killed.

As the men landed on British soil, there was no reason to suspect that their return would involve anything more than a cursory police investigation. El-Banna had been cleared for release from Guantánamo by a military review board in May this year –- as close to an admission of innocence as the notoriously unapologetic US administration ever gets –- and the US authorities had also agreed to the return of Deghayes and Sameur, as requested by the British government in August, while refusing to release another British resident, Binyam Mohamed, whose current parlous state was reported here.

Lawyer Clive Stafford Smith, who represented the men and met with them at Guantánamo during their long imprisonment without charge or trial, pointed out that they had all agreed to unspecified voluntary security arrangements required by the UK authorities, and, on arrival, as Sean O’Neill described it in the Times, El-Banna “was detained under port and border controls –- a signal that Britain does not regard him as posing any serious security threat.” Deghayes and Sameur, meanwhile, were arrested under the Terrorism Act 2000 and were held for questioning at Paddington Green police station in west London, a move that served only to indicate, in O’Neill’s words, “that Scotland Yard’s Counter-Terrorism Command wants to be certain they pose no threat to Britain before releasing them.” He added, “Most of the previous returnees from Camp Delta have been through the same process and none have been involved in any trouble since they came back.”

Even more significant were comments made by William Nye, director of counter-terrorism and intelligence at the Home Office, following discussions with the US government about the return of the British residents, which had first taken place in June 2006, and which were revealed in the Guardian last October. At the time, the British government, which, until that point, had refused to press for the release of any of the British residents, was reluctantly discussing the return of just one of the British residents, Bisher al-Rawi (who was released in March this year). Both al-Rawi and El-Banna had been kidnapped by CIA agents in the Gambia, where they had travelled to set up a mobile peanut-processing plant, after an inexplicable tip-off from MI5, and had been transferred to Guantánamo via a secret CIA-run prison in Afghanistan. Scandalously, the discussions about the repatriation of al-Rawi –- but not of El-Banna –- were based solely on the fact that al-Rawi’s lawyers had embarrassed the government by pointing out that he had actually been working for MI5, keeping tabs on the radical cleric Abu Qatada.

Describing what had happened during the meeting with the Americans, William Nye explained that the Americans had requested that the British take back all the residents –- not just al-Rawi –- but that the British representatives had balked at the conditions that the US government had attempted to impose, which included an insistence that they “cannot legally leave the UK, engage with known extremists or engage in, support, promote, plan or advocate extremist or violent activity,” and that the British government would put surveillance in place “to know immediately of any attempt to engage in any such activity.” Nye declared, “I am not satisfied it would be proportionate to impose … the kind of obligations which might be necessary to satisfy the US administration,” explaining that the measures demanded by the Americans would have to be enforced by MI5 and would divert vital resources away from countering more dangerous terrorist suspects. “The use of such resources … could not be justified and would damage the protection of the UK’s national security,” he wrote, adding, in the most crucial passage, that the detainees “do not pose a sufficient threat to justify the devotion of the high level of resources” the US would require.

It was genuinely shocking, therefore, when the Spanish government lodged its extradition request on the men’s return. As Sean O’Neill described it, the Spanish alleged that El-Banna had links with a Madrid al-Qaeda cell, which was purportedly responsible for recruiting young men and sending them for jihad training, and which was also “said to have had ties to the German-based al-Qaeda unit that plotted the September 11 atrocities.” He added, “What has motivated Spain to act now is something of a mystery. America has had Mr. El-Banna in custody for five years and interrogated him repeatedly in brutal conditions. It laid no charges against him and deemed him fit to be freed. Spain made no attempt to extradite him from or question him while he was in US custody.” He concluded that the Spanish government’s action “seems inhumane and its evidence rather thin.”

Clive Stafford Smith added more detail, explaining that he had tried to encourage a Spanish extradition request as a means of getting the men out of Guantánamo, but that the authorities in Madrid had never showed any interest. “It is very dismaying,” he told the BBC’s Newsnight. “For quite a long time, we tried to get the Spanish to demand their release because we thought it was an elegant way to get them out of Guantánamo. The Spanish weren’t interested … The idea now that they want to use this evidence we have proved to be false to take them for further detention is very worrying.”

Under the terms of the European Arrest Warrant, an EU-wide agreement introduced in 2004 and intended to simplify extradition procedures between member states by removing potential political interference and ensuring “faster and simpler surrender procedures,” the British government had no choice but to comply with the Spanish request, even though William Nye had made it clear that none of the men were regarded as a “sufficient threat” to warrant 24/7 surveillance, and, as Sean O’Neill pointed out, the British “had no intention of putting [El-Banna] on trial as a terrorist when he returned here.”

On the morning of December 20, while the Metropolitan Police were preparing to release Abdulnour Sameur without charge, Jamil El-Banna and Omar Deghayes were duly transported to Westminster Magistrates’ Court –- just a few hundred yards from Parliament –- where Melanie Cumberland, representing the Spanish government, resurrected the claims against the men, first formulated by the Spanish judge Baltasar Garzón in December 2003 (when he also requested the extradition of two other Guantánamo detainees, a Moroccan and a Spaniard), that El-Banna had been a member of a Madrid-based organization known as the Islamic Alliance, and that he was an associate of Imad Yarkas, who is serving 12 years in a Spanish prison for terrorism offences. Cumberland relayed the Spanish authorities’ claim that both El-Banna and Deghayes belonged to a cell that provided recruits for military training in Afghanistan and Indonesia, which was also alleged to have raised funds for terrorism and to have spread al-Qaeda propaganda.

In response, Ed Fitzgerald QC, who represented both men, cited the discredited video as “the centrepiece” of the Spanish allegations, and accused the prosecutor of making wild accusations “for which there was no evidence,” adding that there was, instead, solid evidence that neither the US nor UK authorities considered the men to pose a significant danger.

Granting bail to both men –- set at £50,000 (much of which was paid by actress and human rights campaigner Vanessa Redgrave) –- the judge, Timothy Workman, dismissed prosecution claims that they would flee abroad or engage in terrorist acts, and declared, in El-Banna’s case, “The prosecution concerns about offences being committed are outweighed by the detailed review being carried out in the US.” He did, however, insist on tough bail conditions, including the imposition of a curfew, the use of electronic tagging and a prohibition on travelling abroad.

Jamil El-Banna on his release from custody. His solicitor, Gareth Peirce, is on the right of the picture.

Outside the court, El-Banna, who appeared to have aged considerably during the five years of his imprisonment, made only a brief statement. “Thank you very much everybody, my solicitor, the British people, the British government for your help,” he said, adding, “I am tired, I want to go home and see my children,” before leaving in a car to be reunited with his wife and his five children. He has never seen his youngest child, who was born after his capture. His MP, Sarah Teather, who has campaigned assiduously for his release, said that “immense cruelty” had been inflicted on the family, who were only told at 8.30pm on Wednesday that he had been arrested and would not be coming home. “The children could not understand why he was not back and Sabah [his wife] was devastated,” she added. After meeting Mrs. El-Banna briefly outside the courtroom on Thursday morning, I can confirm that this was indeed the case.

Several hours later, Omar Deghayes also emerged from the court to be reunited with his family. Speaking later from his home in Brighton, he said, “I am very, very happy to be home. I am very grateful to everybody who has helped me. I would have been happier if everybody in Guantánamo were released and that ugly, bad place was closed down if not demolished.” He added, “I need some rest but I will be very happy to speak to everybody in the media to help other people to be released.”

Missing from the extradition discussions –- in the media, if not amongst the lawyers –- was the demonstrable weakness of the intelligence relating to the two other Guantánamo detainees whose extradition was requested by Judge Garzón in December 2003. Garzón’s motives were not in doubt. In an interview for Mother Jones in 2004, he explained to Tim Golden why he was stringently opposed to the Americans’ approach to the “War on Terror,” and why he favoured “a multinational, legal approach over what he describe[d] as a ‘militaristic’ strategy of intelligence gathering, extrajudicial arrests, and military detention.” “What frightens me is when people start going beyond the limits of the law,” he said. “Taking the right to a defense away from those who are detained at Guantánamo. Establishing a license to kill terrorists. In this country, we know what it means to use this heavy hand. We know that when the fight against terrorism moves outside the law, it becomes very dangerous.”

As an example of Garzón’s legal approach to the post-9/11 world, Tim Golden observed that an indictment of Osama bin Laden that was issued by Garzón in autumn 2003, which was the first such document to charge bin Laden in connection with the 9/11 attack, “echoed his insistence that even the most terrible criminals on earth should be dealt with in courts of law.” Garzón also defended his extradition request for the four Guantánamo detainees –- Jamil El-Banna, Omar Deghayes, Moroccan-born Lahcen Ikassrien, and Hamed Abderrahman Ahmed, from the Spanish enclave of Ceuta, in north Africa –- “arguing pointedly that the only standing charges against them were those he had filed in Spain.”

Despite Garzón’s enthusiasm for the law, however, when Lahcen Ikassrien and Hamed Ahmed were extradited from Guantánamo to Spain, at his request, the cases against them collapsed.

Ahmed, transferred in February 2004, had the dubious distinction of being the first Guantánamo detainee to be handed over to a foreign country for prosecution. Released on bail in July 2004, he was later put on trial and was sentenced to six years in prison in October 2005, although Garzón’s claims did not even figure in his trial. Instead, he was convicted based on allegations by the prosecution that he had travelled to Afghanistan in August 2001 to fight for the Taliban government, and had received religious and military training. However, in a momentous decision by the Spanish Supreme Court in July 2006, his sentence was dismissed. The Supreme Court ordered his immediate release, and said that the High Court had not considered him “innocent until proven guilty,” and had used evidence collected at Guantánamo that “should be declared totally void and, as such, non-existent,” adding that the High Court was “entirely remiss in its role of providing evidence.”

Ikassrien, transferred in July 2005, was released on his return, but was ordered to report daily to the police, and was prohibited from leaving the country without permission. When his trial came around, he, like Hamed Ahmed, had his case dismissed by the Supreme Court, which concluded, in October 2006, that there was no evidence to back up charges he was a member of al-Qaeda, stating, “It has not been proved that the accused Lahcen Ikassrien was part of a terrorist organization of Islamic fundamentalist nature, and more specifically, the al-Qaeda network created by [Osama] bin Laden.” Significantly, the Supreme Court’s judgment followed another momentous decision, four months before, to quash the conviction of Imad Yarkas, the lynchpin of the whole case against Hamed Ahmed, Lahcen Ikassrien, Jamil El-Banna and Omar Deghayes, for conspiracy to commit murder in the 9/11 attacks, although his conviction for belonging to a terrorist organization was upheld.

With only these examples of failed prosecutions to draw upon, the position taken by the Spanish government is, frankly, incomprehensible. As Jamil El-Banna and Omar Deghayes attempt to rebuild their shattered lives in the bosom of their families, it is to be hoped that their lawyers can draw compelling arguments from these cases –- and from other examples of Spanish intelligence failures –- before the extradition hearings begin on January 9, 2008.

Jamil El-Banna reunited with his children, December 21, 2007.

For more on the stories of the British residents and Hamed Ahmed, see my newly released book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. For more on Lahcen Ikassrien’s story, see the additional, online chapter here.

As published on Indymedia.