On Friday September 3, in the District Court in Washington D.C., Judge John D. Bates handed another victory to the government in its ongoing effort to continue holding insignificant prisoners at Guantánamo, when he denied the habeas corpus petition of Shawali Khan, an Afghan prisoner. Khan was accused of providing assistance to members of Hezb-e-Islami Gulbuddin (HIG), an anti-US militia headed by the Afghan warlord Gulbuddin Hekmatyar (who, ironically, had received the lion’s share of US funding as a leader of the Afghan resistance to the Soviet occupation in the 1980s, which was channeled to him by the Pakistani authorities who championed his cause).
19 Afghans are still held in Guantánamo, following the release of around 200 others over the last eight years, and Friday’s ruling was the first in the case of an Afghan, and the 16th victory for the government, in the two years since the first habeas ruling took place. The ruling was part of a process that has, to date, resulted in judges granting a significantly larger number of petitions. 38 prisoners have won their habeas petitions, although, as the Obama administration seems to delight in dragging its heels, or appealing successful petitions, 13 of these 38 men are still held, and a 14th recently had his successful petition reversed on appeal.
Judge Bates’ unclassified opinion has not yet been released, so it is impossible at present to know what evidence he relied on to make his judgment, but the decision is particularly shocking because, last year, after reviewing the classified evidence against Khan, Judge Bates declared that all of the allegations came from reports containing “multiple levels of hearsay,” that “all of the information contained in the reports could come from a single individual,” and that “no source is identified by name.”
This alone made the government’s case look flimsy, but it is not the only reason to doubt the outcome of Friday’s ruling. Over the last two years, Khan’s attorney, Len Goodman, a lawyer in Chicago, has pieced together his client’s story, and has also conducted research in Afghanistan to establish that he was not involved in insurgent activities against US forces.
The story of Shawali Khan, a shopkeeper from Kandahar
Goodman agreed to represent Shawali Khan in mid-2007. However, because it takes at least six months for attorneys or translators to receive security clearance to visit Guantánamo, he was not cleared to visit Khan until the summer of 2008. His first visit to his client took place in the fall of 2008. Goodman described Khan as “a small man with sad eyes … who comes from a small farming village near Kandahar, Afghanistan,” and is now in his mid-40s. Over the course of his visits he established Khan’s story, describing it in an article in the US magazine In These Times (in September 2009) and also in an article on his website last month.
As Goodman explained, “In 2000, there had been a drought on the farm and Khan had moved with his father and brother to Kandahar City where they opened a shop selling petrol products. When US forces invaded Afghanistan in 2001, Khan continued to run his oil shop and even worked, for a short time, for the Karzai government as a driver.”
However, on November 13, 2002, while riding his motorcycle from his home to the market, he was seized by Afghans working for Gul Agha Sherzai, the US-backed governor of Kandahar, who had assisted US forces in seizing Kandahar from the Taliban in November 2001, but had then established a regime that was noted for its corruption. According to Goodman, the men who seized Khan told US officials that he was “a terrorist, plotting against US interests in and around Kandahar.” He added, “It is almost certain that the US paid a bounty to Khan’s captors but this cannot be confirmed because, while the US admits paying large cash bounties to warlords who turned in ‘al-Qaeda and Taliban fighters,’ it has refused to release any of these files.”
Goodman also explained that, “around the time of his capture, one or more Afghan informants told US intelligence officials in Kandahar that Khan was an active member of a local insurgent group that was plotting to bomb Americans in and around the Kandahar region.” However, “The US intelligence officer did not bother to record the informant’s name or whether he was paid a bounty. Nor did he inquire how the informant acquired his information or whether the informant is a credible person or a criminal. Nor did the official attempt to corroborate the allegations against Khan before sending him off to the newly built prison at Guantánamo.”
This, sadly, is typical of the Guantánamo cases (and is a pattern that was repeated again and again with the Afghan prisoners at Guantánamo). However, although it is understandable that administrative details can be missed in the heat of war, a more fundamental problem, identified by Goodman, is that US forces repeatedly demonstrated that they had made no attempts whatsoever to ascertain whether their sources were reliable.
In Khan’s case, the allegations, as presented in a military review board in September 2005, were that in September 2002 he was directed by HIG commander Zabit Jalil “to carry out a terrorist operation targeted at US military personnel located at Gecko base, Kandahar,” that he delivered “a radio-controlled binary detonation device and two blasting caps” to a HIG operative in November 2002, that he tried to purchase rockets in September 2002, that he undertook military and explosives training at a HIG camp in Pakistan, and that after his arrest tanks, rockets and guns were found in his family orchard, and that he was “found with a 50m spool of detonation cord.”
As I explained in a profile of Khan last year:
This was a fairly comprehensive list, but the allegations seem to have been based on the fact that Zabit Jalil was his uncle (his mother’s brother). Khan denied all knowledge of his uncle’s activities. As far as he was concerned, Zabit Jalil worked for the Karzai government, and he told the tribunal that he (Khan) had also worked for the government “for a while” as a driver. In a personal statement, he said, “the Afghans caught me and took me to the Americans. I talked to the Americans and I showed them my house and I showed them my shop. Those Afghan people took my money and my motorcycle and gave me to the Americans.” He explained that a list of weapons that was in his possession at the time of his capture was a receipt, given to him by his uncle, because all weapons had to be accounted for to the Karzai government, but he repeatedly denied knowledge of the alleged weapons cache in his orchard. He also said that the Afghans gave him “a hard time” in Kabul, but that the Americans had treated him better. He suggested that “the intelligence people, the reporters, or spies … were capturing everybody to give them to the Americans for money.”
As I also explained:
As with many other stories, it would have made sense for the US military to try and contact the Afghan authorities in the Kandahar area, to find out whether Zabit Jalil had in fact been working for the Karzai government, but as usual there is no evidence that any attempt was made to conduct even the most rudimentary investigation of Khan’s story.
Khan’s attempts to secure justice in a US court, despite being cleared for release on two occasions
After he was seized, Khan was taken by US forces to the prison at Bagram airbase, where, as Goodman described it, “he repeatedly told his interrogators that he and his family had an oil shop in Kandahar and were not enemies of the Americans.” Although the interrogators wrote in their reports that Khan “appeared honest,” he was sent to Guantánamo in February 2003, where he had to wait for over four years before he was assigned a lawyer. Last month, Len Goodman helpfully summarized Khan’s attempts to secure justice via the US courts, in a sequence of events that reveals obstruction on the part of the government, and evident confusion, as he was twice declared cleared for release, but was not actually freed:
By far the most frustrating part about representing a Gitmo detainee is that there is so little lawyers can do for their clients. In June 2008, right after Boumediene [v. Bush, in which the Supreme Court reasserted that the Guantánamo prisoners had habeas corpus rights], I filed a habeas corpus petition in the D.C. District Court demanding an evidentiary hearing and Khan’s release. During my first visit in the fall of 2008, I excitedly told Khan about this petition and about the great writ of habeas corpus. Khan informed me that the guards had recently told him that he was cleared for release and would soon be going home to Afghanistan. He had even been visited by representatives of the Red Cross to help prepare him for the journey. This was news to me, but about a year later, the government lawyers finally disclosed that Khan had in fact been cleared for release but that decision had been revoked.
During my second visit, in January 2009, I again told Khan about the virtues of habeas corpus. I explained that his case was pending before a real federal judge and that he would have a real hearing where the government would have to produce real evidence to justify his continued detention (unlike the Mickey Mouse CSRT hearings Khan had already received at Gitmo). I further explained that Khan would have an opportunity to testify at his hearing via video conference. Khan agreed to participate and requested that this hearing be held as soon as possible. I promised to push the judge for the earliest hearing date.
During my next visit in mid-2009, I had to explain to Khan that the Court had granted the government’s request for a stay of all habeas proceedings while it conducted a new search through archived intelligence files for additional evidence against Khan. Khan was angry and frustrated. The fact that I shared his frustration did not comfort him.
That fall, the Court finally set Khan’s case for a merits hearing. I wrote to Khan to tell him the good news. But then, in December, the government again successfully moved, over my strenuous objection, to stay the merits hearing on the grounds that Khan had again been “cleared for transfer” at some future date unspecified. In January 2010, I visited Khan for the fourth time and delivered the bad news that his hearing had again been postponed. (Shortly after this visit, Khan fired me but then later agreed to let me represent him at his hearing.)
In February 2010, the Court lifted the stay and reset the merits hearing, acknowledging perhaps that the government was merely stalling for time. On May 13, 2010, Khan’s hearing commenced, closed to the press and the public.
The government produced no live witnesses at the merits hearing. Instead, it offered classified documents from US intelligence officers reporting that certain unidentified Afghan informants had named Khan as an anti-US insurgent. In response, the defense offered nine sworn declarations from Khan’s family and neighbors, all of which refuted the charge that Khan was a terrorist. The defense also presented the live testimony of a professor and expert on Afghan terror groups and the published memoir of a US journalist who had lived in Kandahar during 2002, each of which supported the defense claim that the allegations against Khan were fabricated by bounty hunters.
As Goodman also explained, “The only other detainee at Guantánamo from the Kandahar region was shown Khan’s photograph. He told his interrogators that Khan ‘was a shopkeeper who sold gasoline in Kandahar’ and was not a terrorist.”
On May 17, seven and a half years after his capture, Shawali Khan was finally able to tell the court, through a secure and encrypted video link, that “he was a shopkeeper and not a terrorist or enemy of the United States,” but his testimony — and the evidence provided by his witnesses — was obviously in vain, because, on Friday, Judge John D. Bates denied his habeas corpus petition, assigning him to endless, ongoing detention at Guantánamo on an apparently legal basis.
Apart from the fact that it remains insupportable that the justification for holding prisoners at Guantánamo — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — allows prisoners of war to be held at Guantánamo, and not in a prisoner of war camp, with the full protections of the Geneva Conventions, Judge Bates’ ruling appears to be unsupported by the facts. Perhaps, as in the case of a Yemeni prisoner last summer, he decided that, although the government’s evidence was “gossamer thin,” it was sufficient to endorse the ongoing detention of man who had twice been cleared for release — once by a Bush-era military review board, and once by the Obama administration’s Guantánamo Review Task Force.
I must admit, however, that this strikes me as unlikely. As someone close to the case explained to me over the weekend, when I asked if there were any compelling reasons to doubt the government’s story, “Yes, Shawali Khan’s defense team had nine affidavits from his rural village and from Kandahar where he drove for the Karzai government before he supposedly started an HIG cell in an area hundreds of miles from any HIG cells.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohamed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010), Judge Orders Release from Guantánamo of Russian Caught in Abu Zubaydah’s Web (May 2010), No Escape from Guantánamo: Uighurs Lose Again in US Court (June 2010), Does Obama Really Know or Care About Who Is at Guantánamo? (June 2010), Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners (June 2010), Obama Thinks About Releasing Innocent Yemenis from Guantánamo (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), Judge Orders Release from Guantánamo of Yemeni Seized in Iran, Held in Secret CIA Prisons (July 2010), Innocent Student Finally Released from Guantánamo (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One) (July 2010), Obama and US Courts Repatriate Algerian from Guantánamo Against His Will; May Be Complicit in Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) (July 2010), Judge Orders Release from Guantánamo of Mentally Ill Yemeni; 2nd Judge Approves Detention of Minor Taliban Recruit (August 2010).
Here are a few comments from Facebook:
Susan Trevelyan-Syke wrote:
Whatever happened to the Constitution?
This was my reply:
Susan, the Constitution, sadly, went the way of the Geneva Conventions and the anti-torture statute nearly nine years ago …
Willy Bach wrote:
Andy, thanks for this. I despair of these peoples’ utter incompetence, even the judge, John D Bates. Look at the harm they are doing too. It is a form of torture to keep changing from telling the detainee they are due for release and then not. Shawali Khan might be wondering if he would get better justice than this in an Afghan village.
I think you are a little generous to say, “although it is understandable that administrative details can be missed in the heat of war”. What heat — what war? These US forces were not facing an air force, helicopter gunships, artillery, tanks, white phosphorus, napalm. They are not the ones at war. They are just defending an illegal aggressive occupation against a few insurgents. Sloppy work is inexcusable, but they never expected to have to account for what they did whilst “creating their own reality”.
What? They could not even get the informant’s name or check their credentials? This shows they were just simply buying bodies for Gitmo so the Bush regime could look as if they were doing a good job of mopping up terrorism and all the simple-minded North Americans could go back to sleep.
Now we can see the results of voting for charismatic leaders. Obama cannot even sort out the mess that Bush made. His is a dismal performance too. Judge Bates’ statement will be interesting, won’t it!
This was my reply:
Willy, I apologize for being charitable at any point in the article. When I was researching the stories of the Afghans at Guantanamo, what struck me most of all was how so many of the cases involved raids by the US military or by Special Forces, based on tip-offs from informers who were never identified, and whose trustworthiness — or lack of it — was never investigated. It was a clear demonstration of the lack of intelligence on the ground during the whole occupation — and I’m sure it’s not changed substantially, as reports from Bagram continue to indicate the same process of idiotic raids based on untrustworthy intelligence. Apart from anything else, it indicates to me that the supposed battle for hearts and minds was lost back in 2002, and has never been regained.
Mary Zink wrote:
welcome to world wide fascism coming soon to YOUR neighborhood too
[...] Posted on September 8, 2010 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 8 September, [...]
[...] them released in the next few years, while the foot soldiers, the cook, a medic and a handful of pointessly detained Afghans rot in Guantánamo [...]
[...] instructions to demand little in the way of evidence had filtered down to the lower court. As I explained at the time, Khan, a former farmer, in his 40s, who had traveled with his brother to the city of Kandahar after [...]
[...] The judge [John Bates of the D.C. District] accepted this summary as sufficient corroboration, and denied Khan’s habeas petition. [A decision that, of course, was upheld by one of the D.C. Circuit's [...]
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