Broken Justice at Bagram — for Afghans, and for Foreign Prisoners Held by the US

This is the second article in “Bagram Week” here at Andy Worthington, with seven articles in total exploring what is happening at the main US prison in Afghanistan through reports, analyses of review boards, and the voices of the prisoners themselves, and ongoing updates to the definitive annotated Bagram prisoner list.

So what’s happening at Bagram, the main US prison in Afghanistan, which has been wracked by scandals, including a number of murders, and allegations of torture and abuse since it opened in December 2001?

Unrecognizable since those early days, the prison at Bagram — once housed in a Soviet-era machine shop — is now in an entirely new building, known as the Detention Facility in Parwan. This, according to the Pentagon, is part of a larger Afghan Justice Center in Parwan, which “will become Afghanistan’s central location for the pre-trial detention, prosecution and post-trial incarceration of national security suspects.”

Bagram only occasionally attracts media attention, but in February the prison — in its new location — was officially relaunched as part of America’s revised approach to detention in the Afghan warzone, with more focus on rehabiitation, and less on punishment and isolation. At the time, I was too busy to write about or to cross-post reports by journalists who visited the facility for this relaunch — whose reports were published in the Huffington Post, Stars and Stripes and McClatchy Newspapers — so I thought I’d gather them together here, for anyone else who missed them, as part of my special coverage of Bagram this week. This coverage includes an update to the definitive Bagram prisoner list (the updated prisoner list is here), and “Voices from Bagram,” a three-part series drawing on the Detainee Review Boards at Bagram, and featuring rare examples of the testimony of prisoners.

I was planning to do a clever edit of these three articles, but instead I’m going to content myself with cross-posting them in their entirety, as they all have something to offer. First up is an article in the Huffington Post on February 13 by Daphne Eviatar of Human Rights First, looking primarily at the problems with clearing foreign prisoners for release, but then continuing to hold them (something that also has echoes at Guantánamo). This is based on a useful analysis of the work of the Detainee Review Boards,  introduced by President Obama in September 2009, which are used to formalize detention at Parwan/Bagram, in a form that is an improvement on the Bush years, but is still problematical, not only because they are not leading to the release of foreign prisoners, thereby undermining their credibility,  as Daphne explains, but also because they still bear no resemblance to the Geneva Conventions, which were throughly sidelined by the Bush administration, and are stlll, it seems, missing in action under President Obama.

This article is followed by a McClatchy Newspapers article from February 25, looking primarily at the success of the new, more humane regime at Parwan, but also touching on problems with abuse at the point of capture, and the prisoners’ difficulties when it comes to mounting meaningful challenges to the evidence against them in their Detainee Review Boards, where they do not have access to lawyers, or, in any adequate sense, to the outside world as a whole, where witnesses might be located who would be able to help them.

The concluding article, published in Stars and Stripes on February 21, examines the difficulties of establishing the guilt or innocence of prisoners, again revisiting important questions that need to be raised about the Detainee Review Boards, and about the type of screening that needs to take place in wartime, by focusing on one particular story — that of former Bagram prisoner Ghullam Sarwar Jamili. This is an excellent case study, juggling the many different elements of detention in Afghanistan — in particular, how the Afghans’ hopes of “build[ing] a law-based state, where due process in a courtroom is the basis for incarceration,” clashes with the US approach.

Defending their use of open-ended detention and review boards — despite the fact that they constitute a unilateral abrogation from the Geneva Conventions — US officials appear to be unconcerned that Afghan prosecutors are complaining that they receive nothng more than “vague case files” from intelligence officials at Bagram, provoking doubts that “the right people are landing behind bars” because “the detentions are based more on confidential intelligence than on releasable evidence.”

US officials also appear unconcerned by complaints from “human rights groups, along with the Bagram detainees themselves,” who say that “their inability to adequately refute the claims against them breeds bitter contempt against the Americans.”

As the articles reveal, the physical conditions at Bagram may have improved for the majority of the prisoners held, but complaints remain that America is still operating under an assumption that it can make up rules as it goes along, and that no one is listening when critics — either Afghan officials, or the priosners, or human rights groups — complain that these innovations have not led to fairness, and to success in the crucial arena of winning Afghan hearts and minds, but have, instead, often led to more confusion, resentment and bitterness, and a belief that Bagram and justice are incompatible.

Justice Remains Elusive for Many at U.S. Prison in Afghanistan
By Daphne Eviatar, Huffington Post, February 13, 2011

In the summer of 2008, the United States military captured a 16-year-old Pakistani boy and imprisoned him at the Bagram air base in Afghanistan. According to his lawyers, for over a year his family had no idea where he was. When he was finally allowed to speak to relatives nearly two years later due to intervention by the Red Cross, Hamidullah Khan told his brother that he had had a hearing in the U.S. prison. The U.S. military judges had admitted lacking any evidence against him and recommended he be returned home to his family in Pakistan. Months later, he remains imprisoned at the U.S. detention facility in Afghanistan.

Hamidullah Khan is not alone. Of the 41 men who come from outside Afghanistan and remain locked in the U.S.-run prison at Bagram, more than a dozen have been recommended for release by U.S. military tribunals. Yet only one is currently scheduled to be sent home.

I arrived in Afghanistan last week to research U.S. detention here. According to the recently-released detainees I interviewed, prison conditions and treatment have significantly improved in recent years and prisoners now at least have a chance to plead their case in a hearing — a big step up from the policies of the Bush administration. But I was shocked to learn that for some reason no one seems to know, prisoners from outside Afghanistan who are imprisoned here aren’t being sent home even after they’ve won their case and been recommended for release.

Known as Detainee Review Boards, the hearings take place at the United States’ recently-built Parwan Justice Center on the Bagram air base. Detainees are supposed to get a hearing about every six months, but they’re not represented by lawyers and don’t get to see much of the evidence against them. (I’ll be writing more about this later). But it’s still the only opportunity prisoners at Bagram have to make their case, ask relatives or village elders to speak on their behalf, and plead for release. Last year about 350 U.S. prisoners were released this way. But in some cases, even though a panel of military judges has ruled that the prisoner does not pose a security threat and the military has no evidence that he’s done anything wrong, these men — who come from Pakistan, Tunisia, Kuwait, Yemen and even Germany — are still locked up in prison. At least one has been at Bagram since 2002. [Actually, two men, Mohammed Amin al-Bakri, a Yemeni seized in Thailand, and Ridha Ahmad Najjar, aka Redha al-Najar, a Tunisian seized in Karachi, were seized in 2002. They, and another Bagram prisoner, Fadi al-Maqaleh, won a habeas corpus petition in a US court in March 2009, but this was overturned by an appeals court in May 2010. However, just two days after this article was published, Judge Bates gave them an opportunity to present new evidence in support of their habeas petitions, as discussed here].

Since arriving in Kabul a week ago, I’ve asked about a half dozen U.S. military and State Department officials in Afghanistan why that is. Nobody seems to know.

The reluctance to release these men may have something to do with the parallel holdup at Guantánamo Bay, where almost 90 prisoners have been approved for transfer or release but remain stuck in the U.S. prison there. Most of those detainees come from unstable countries such as Yemen, where the U.S. government categorically refuses to return Gitmo prisoners ever since one Yemeni over a year ago [actually a Nigerian, allegedly recruited in Yemen] tried to blow up a plane bound for Detroit. Others, such as the Chinese Muslim Uighurs, don’t want to return to home because they legitimately fear being tortured upon their return. Finding a place for these detainees to go is a challenge — particularly since the United States has refused to accept a single one of them. [For more on these stories, see my articles, Does Obama Really Know or Care About Who Is at Guantánamo?, Guantánamo and Yemen: Obama Capitulates to Critics and Suspends Prisoner Transfers and No Escape from Guantánamo: Uighurs Lose Again in US Court].

Congress just made returning Guantánamo prisoners even more difficult by blocking their transfer unless the Defense secretary and secretary of State will certify that the receiving country will prevent the detainee from getting involved in any future anti-U.S. activities. [See my article, With Indefinite Detention and Transfer Bans, Obama and the Senate Plumb New Depths on Guantánamo].

But there’s no legal bar on returning home innocent men, like Hamidullah Khan, who’ve been recommended for release from Bagram. Yet for some reason, the U.S. government isn’t doing it.

Officials in both the Defense and State Departments I spoke to say they’re aware of the problem but it’s out of their hands. When I was at the Parwan Justice Center at Bagram earlier this week watching Detainee Review Board hearings, one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they’ll be going home, or what’s causing the holdup. The problem, according to the U.S. officials I spoke to in Afghanistan, is somewhere in Washington.

Why should Washington start paying more attention to the problems of a dozen or so men? One military commander at Bagram I spoke to insisted this group makes up just a tiny percentage of the more than 1500 prisoners at Bagram — not something to be too worried about, given the number of detainees. But it’s still a big concern to the family of Hamidullah Khan. And outraging extended families in the region isn’t going to help the United States.

What’s more, the belief that the United States is imprisoning people without cause is widespread in Afghanistan. For a long time, that was because the U.S. didn’t give detainees at Bagram any opportunity to defend themselves at all. They could be locked up for years without even knowing the charges against them. There are now almost three times as many prisoners at Bagram as there were during the Bush Administration. Although now they get hearings, they’re not allowed to have lawyers and much of the evidence against them remains secret. The detainees never get to see or challenge it. Still, some detainees manage to win recommendations for release. But the United States’ refusal to release the non-Afghans among them tells the entire prison population that this new so-called “justice” system — and with it, U.S. respect for the rule of law — is meaningless.

That’s not going to help the U.S. military effort in Afghanistan.

What happened earlier this week in Jalalabad is illustrative. On Monday, hundreds of Taliban sympathizers rallied in an anti-U.S. protest at the funeral of a Guantánamo detainee who was returned home in a coffin after he died last week [actually on February 1] in the U.S. prison. Although the United States insists he was a known Taliban commander, 48-year-old Awal Gul was never charged or put on trial, so the government never proved its case. The Taliban and their sympathizers eagerly capitalized on that at home in Afghanistan. “Death to America!” was the rallying cry at the funeral. [For more on this story, see my articles, Guantánamo Prisoner Dies After Being Held for Nine Years Without Charge or Trial and In Afghanistan, 5,000 Attend Funeral of Prisoner Who Died in Guantánamo, as Afghan Peace Council Calls for Release of Former Taliban Official].

As the war in Afghanistan drags into its tenth year, the United States doesn’t need more martyrs. It does need to do a much better job of winning regional support for its mission. Sending innocent prisoners home would be a good start.

With new Bagram prison, U.S. looks to put bad press of years past to rest
By Saeed Shah, McClatchy Newspapers, February 25, 2010

BAGRAM AIR BASE, Afghanistan — The bearded Taliban prisoners at Bagram broke off from a spirited game of soccer in the yard to greet a McClatchy Newspapers reporter, the first journalist allowed into the notorious U.S. jail in Afghanistan since detainees there were moved into a new multimillion-dollar facility.

“Nice to see you guys!” one of the prisoners said with unexpected cheerfulness, in English with an American accent, rushing over and showing off some prayer beads made in the prison workshop. “These should be in retail somewhere.”

The prisoners were running around in bright orange Afghan-style baggy shirts and trousers, a slight variation on the orange jumpsuits made infamous at the Guantánamo Bay prison in Cuba. The detainees, all young men allegedly associated with the Taliban or al-Qaida, wore prayer caps and the long, unkempt beards that fundamentalist Muslims favor.

“Colonel Garrity has brought us a lot of good things,” the prisoner volunteered. He spoke through a metal fence and didn’t identify himself, and McClatchy’s reporter wasn’t allowed to ask any questions.

Col. John Garrity runs the new Bagram jail, formerly known as the Detention Facility in Parwan, and he aims to bury years of bad press. Garrity, brought in last year from Fort Bragg, N.C., to take over the jail, admitted that not all his charges feel so warmly toward him.

“I know most of them, and I know all of their stories,” Garrity said as he conducted a lengthy tour. “This is COIN” — counterinsurgency — “inside the wire, turning an insurgent into a productive citizen.”

Journalists weren’t allowed to visit the old Bagram prison, in another part of the vast air base 30 miles outside Kabul, where prisoners were kept in cages in a converted aircraft hangar and widespread abuse has been documented, including two homicides in 2002.

While the Obama administration plans to close Guantánamo, Bagram not only has been retained, it’s also been expanded in its new location, leading some critics to dub it “Guantánamo Two.”

Bagram is the test of President Barack Obama’s ambition to improve the treatment of detainees the U.S. military captures in its anti-terrorism fight. The new American approach to the Afghan conflict also rests partly on the conditions for detainees, in order to win over an outraged population that for years has dined on stories of torture and religious abuse.

Jonathan Horowitz, a consultant with the Open Society Institute, an independent group based in the U.S. that promotes democracy, said that there were “very few, if any” indications that the institutionalized physical abuse reported at Bagram from 2003 to 2005 was continuing. However, he said that many detainees at Bagram remained there because of mistaken identity or on the basis of false information provided against them.

Reports of prisoner abuse began to decline in 2006 and now are rare.

Horowitz said two big problems remained: physical abuse at the point of capture and the inability of detainees at Bagram to “meaningfully” challenge the allegations against them, despite procedural reforms that were instituted in September.

The average detainee spends 24 months at Bagram — some spend many years there — and no one sees a lawyer once during that time.

“There has to be a credible and fair process that can get these detainees out of the fog of war, to be able to make an accurate assessment of who should stay in detention and who should get to go home to their families,” said Horowitz, who’s worked extensively with former Bagram detainees.

The new $60 million facility, to which the detainees were transferred in recent weeks, is a spotless, modern prison. Human rights groups, who were allowed to visit before the prisoners arrived, say the new building is a vast improvement.

Inside the cells, the guards — 1,200 American military personnel are deployed there — were using the prisoners’ recreation time to search through their few possessions — mattresses, blankets and clothing — for banned items. Their Qurans, provided for each prisoner and stacked in a corner, also would be checked, but by a Muslim employee.

At 10:30 a.m. one recent day, those prisoners who were still in their spartan cells mostly were napping or lying on their mattresses staring into space, while a few were bent over in prayer. Although officials had warned that the prisoners might spit at visitors or even throw feces, there was no hostility.

Each cell was crammed with about 20 prisoners, a rubber mat on the floor marking the spots where each would place a thin mattress. Food is passed into the cells. Piles of Afghan flatbread were stacked outside the cells, waiting for lunchtime. The Bagram authorities boasted that the average prisoner gains 36 pounds during his detention.

In one section of the jail, detainees were speaking by video link to friends or relatives — bearded, turbaned men were on the screens at the other end — an experience they appeared to relish. According to Garrity, better facilities, including space to hold classes and separate “negative detainees,” mean that Bagram can attempt to rehabilitate some detainees.

“If we treat him with dignity and respect, he’s less of a threat to you. He’s not angry at the guard force,” Garrity said. “We change Taliban, one detainee at a time.”

Under a legal revamp last September [actually, September 2009], a new detention-review procedure means that detainees are present for their hearings and get “personal representatives” or military officers to argue for them and, in theory, to call witnesses. This, however, is technically “internment,” so no charges are ever brought, nor is anyone found guilty or innocent.

The U.S. plans to hand over the new Bagram to the Afghan military next January, a demanding target that some think it will be unable or unwilling to meet. Afghan guards are due to start arriving this spring to be trained. This appears to be the reason, officially at least, for expanding the capacity so dramatically, from 600 prisoners at the old site to 1,000 currently and up to 2,300 when the new building is completed.

“This will be the enduring detention facility for the next 50, 60 years. It’s world class,” said Navy Vice Adm. Robert Harward, who’s in charge of U.S. detention programs in Afghanistan and who was visiting Bagram. “For the Afghans, this means that they will immediately be able to separate the insurgents from the criminal population.”

One obstacle is funding, though. It costs $5 million a year to maintain the new facility, plus an additional cost per detainee, Garrity said. That’s way beyond the budget of the Afghan authorities for a single jail, so it remains unclear how the new prison will be financed.

Parwan detention center reviews suspects’ cases, but finds neither guilt nor innocence in a war zone
By Dianna Cahn, Stars and Stripes, February 21, 2011

KABUL — It would be easy to take Ghullam Sarwar Jamili at his word — that this smiling and dedicated family man has survived a hard life swept up in his country’s endless travails.

Behind his glasses, one lid is closed over a missing eye. Jamili’s leg, hidden beneath his traditional Afghan cloak, bears battle scars from almost 20 years ago, during the civil war. His scarred and ruined arm does not fully extend.

Jamili’s family sits around the soft-spoken man with the salt and pepper beard and jokes easily, quick to defend this 59-year-old patriarch who raised nine children as a refugee outside his native Afghanistan, educating them through college and beyond.

But there is another, more menacing portrait of Gullam Sarwar Jamili — that of an Islamic revolutionary committed to violent struggle for Afghanistan and accused of recruiting young militants to fight against U.S. and Afghan forces. That is the man whom U.S. soldiers say they imprisoned in 2007 and held behind the concrete and razor wire walls of Afghanistan’s most secretive prison, the U.S. detention center at Bagram Air Field in Parwan province, for three and half years.

Throughout his detention, Jamili held fast to his declarations of innocence, while American officials and some observers familiar with the case insisted the suspicions against him were warranted.

But even after he was released last September, the truth remained hidden. Jamili, like most of the thousands of detainees held in Bagram since 2002, or the new Parwan facility nearby, found himself consigned to a legal purgatory, never found guilty of any crime, but never quite cleared, either.

U.S. officials say they have no choice but to hold suspected Afghan militants like Jamili without formal charges. In a time of war, they say, it’s the only way to keep dangerous enemy fighters off the battlefield.

But Afghan government officials looking to the Americans to help them build a law-based state, where due process in a courtroom is the basis for incarceration, are instead being presented with a very different, extra-judicial example based on the laws of armed conflict.

For Afghan prosecutors, who receive vague case files from U.S. officials at Bagram, there is skepticism that the right people are landing behind bars because the detentions are based more on confidential intelligence than on releasable evidence.

Meanwhile, human rights groups, along with the Bagram detainees themselves, say their inability to adequately refute the claims against them breeds bitter contempt against the Americans.

“Once you are in Bagram, it doesn’t matter what country you came from or how you got there,” said Tina Foster, executive director of the International Justice Network that represents dozens of Bagram detainees, though it has never had access to them. “You are in a black hole. You have no legal recourse anywhere in the world.”

Human rights groups complained for years that detainees at Bagram languished with little or no knowledge of the accusations against them, no rights to challenge their detentions and no legal representation. In the early years of the war, two detainees were killed in Bagram and several U.S. soldiers were convicted of or pleaded guilty to abusing inmates.

More recently, conditions have improved. In the past year, the U.S. replaced the old facility with a pristine new complex dubbed the Detention Facility in Parwan and moved the detainees there. It has roomier housing, space for family visitations and, most importantly, new detainee review boards that allow detainees to receive some information regarding the suspicions against them. Suspects can also rebut those accusations and call witnesses to appear on their behalf.

The facility, which many still refer to as Bagram prison, also opened its gates to visits by human rights groups and journalists, who are permitted to attend hearings.

“Part of the goal of our command was to increase transparency,” said Michael Gottlieb, a State Department attorney who advises the year-old Task Force 435 that runs the complex. “Stories of people disappearing and families not knowing where there their relatives were, especially in the 2004 to 2007 period, were a common gripe.”

Nevertheless, rights groups say that the system remains fundamentally flawed. Detainees still don’t have lawyers, and there is no threshhold of proof to keep them indefinitely behind bars. Information gathered through intelligence remains secret. And a determination that a detainee poses a threat is enough to extend his detention.

“They might have improved buildings, they might have made it prettier, they might have improved their own internal proceedings,” Foster said. “But nothing has changed regarding the rights of these people.”

A history of violence

Jamili’s story is the story of Afghanistan, a chronicle of strife and displacement that began more than 30 years ago.

It was 1979 and Soviet forces were assisting their client government in Kabul to fight U.S.-backed mujahadeen rebels.

Jamili, then an educated 27-year-old, said he spent a year in prison for his anti-communist views. In 1982, he said, he fled to Peshawar, Pakistan, with his wife and three young children, and ultimately settled at the Shamshatu refugee camp run by the Islamist Hezbi-e-Islami movement of Gulbuddin Hekmatyar, or HiG.

Jamili said he spent the next 10 years working for HiG political agencies, first in the refugee section in Shamshatu and later as a party communications officer in Tehran. He taught his children to speak and teach English, and the family was well known in the camp.

Jamili said he followed the mujahadeen briefly to Kabul in 1994, and that he was wounded when his car got caught in the crossfire of warring parties. He was shot in the arm and in the head, a life-threatening wound that cost him an eye.

After recuperating in Pakistan, Jamili said, he spent four more years as a principal of a madrassa, or religious school, in Iran, and returned to Shamshatu in 2000.

By then, the Taliban was in control in Kabul, and HiG had aligned itself with the Taliban and al-Qaida in Pakistan. When al-Qaida terrorists attacked the United States on Sept. 11, 2001, Jamili said, he was no longer involved.

Jamili’s eldest sons supported the family. Javid, the oldest, was a journalist. Anwar, who went to medical school, brought home extra money by playing a part on a popular BBC radio soap opera. Both later moved to Kabul, where Anwar worked with USAID and then an affiliate charity where he ultimately became country director.

In July 2007, the Jamili clan gathered in Kabul for a niece’s wedding. Anwar was about to set his parents and youngest siblings up in Kabul permanently. Life was good.

Then, on July 11, Jamili said he was walking down the street with his son and son-in-law when an unmarked car pulled up alongside them. An undercover officer declared that Jamili needed to come with them.

At the police station, Jamili recalled, two Americans took his photograph. The hours passed, and he said two U.S. soldiers blindfolded him and cuffed his arms and legs. They took him somewhere where he could hear helicopter rotors.

And then he found himself in a cell in Bagram.

‘A pretty robust process’

The Americans in charge like to describe the detainee review boards as the real change. Detainees get to appear and answer questions regarding the accusations against them. Each is assigned a uniformed U.S. soldier familiar with the case who is tasked with helping to defend the detainee. Witnesses also may be called on a detainee’s behalf.

“It’s a pretty robust process,” said Gottlieb. “We’ve had over 1,300 Afghan witnesses testify before the board this year.”

Across Afghanistan in 2010, U.S. forces detained more than 5,000 suspected combatants, Gottlieb said. Of those, 1,000 were sent to Parwan, where each came before a detainee review board.

Review boards last year ruled that 60 percent of those being held met the minimum criteria for detention and should remain in custody, Gottlieb said. Eleven percent did not meet the criteria and were released. An additional 10 percent were found suitable for reintegration; that is, they met the criteria for being held but the board decided to release them. And 10 percent were handed over to the Afghans for prosecution. Gottlieb did not account for the remaining detainees, but said some were foreigners who were found eligible for extradition to other countries.

A detainee review board is not a criminal trial, the military says, and it is not intended to prove guilt or innocence. Instead, its purpose, based on evidence and intelligence, is to determine whether a detainee continues to pose a threat.

“The purpose is to remove an insurgent from the battlefield during a time of hostility,” Gottlieb said, “not to … prove an individual’s guilt beyond a reasonable doubt.”

Military officials say that the process is the only way to protect intelligence they gather on suspected insurgents or terrorists. But that’s a sticking point for rights groups.

“There may have been devastating intel for these detainees — we just don’t know,” said Rachel Reid, an Afghanistan analyst with Human Rights Watch. “As a counterinsurgency strategy, the U.S. wants to be seen as a fair actor. As long as they keep this process secret, it is very difficult to show Afghans that they are getting a fair process.”

‘Not even No. 100’

At first, Jamili believed he would be released quickly. But when days turned to weeks, then months, Jamili resigned himself to his detention.

Physically, he said, he was treated well.

“It’s enough if you are in a cage with no link to the outside world,” Jamili said, “and no certainty about your future and no connection to your family.”

In the old facility, he said, detainees were shackled together in a chain gang to go outside and exercise. But that stopped once they moved to the new facility, he said. If prisoners misbehaved or protested, Jamili said, guards took away everyone’s blankets and mats.

Occasionally, Jamili said, if a prisoner taunted a guard, there were beatings, but they were rare.

Jamili’s description matched those provided by other detainees who spoke during a recent release ceremony at the facility.

“No one is mistreated, but if one detainee makes a problem, all the detainees are punished,” said Mullah Abdul Rauf, a madrassa teacher from Paktiya province who said he was held in Bagram for two years.

Throughout his more than three years in detention, Jamili steadfastly denied that he’d played any role in the insurgency.

But an officer with one independent international organization that monitors detentions, who spoke on condition that neither he nor his agency be identified, said that Jamili was “a dangerous man,” a recruiter who solicited young Afghan refugees to fight against the Afghan government and U.S. soldiers.

U.S. officials won’t comment on reasons for holding or releasing individual detainees. But one official, speaking on condition of anonymity, said that Jamili’s detention was not an accident. He’d been reviewed repeatedly and review boards continued to find reason to hold him, the official said.

Others backed Jamili’s claim of innocence. Ghairat Baheer, Hekmatyar’s son-in-law and a spokesman for HiG, was in Bagram at the same time. He recounted how his jailers questioned him about Jamili.

“When he was captured, they told me that they had captured a senior person in HiG,” said Baheer, who has since been released and was reached by telephone in Pakistan. “I said he’s not No. 2, No. 3, No. 10, not even No. 100.”

Outside the prison walls, Anwar, Jamili’s son, reached out to everyone he could. He hired an Afghan lawyer and contacted Foster at the International Justice Network. He called the U.S. Embassy repeatedly. Meanwhile, Javid, who had moved to Paris, contacted rights groups there.

When the brothers appeared before a review board for their father last summer, Anwar said he confronted the Americans.

“We told them, ‘How could we be al-Qaida when we are working with the government, the educated?’ ” Anwar recounted.

When Jamili was released from U.S. detention in September, it was not to be set free. The U.S. military handed him over to Afghan prosecutors, who were asked to determine whether to put him on trial.

Problematic handover

The U.S. military has been negotiating with the Afghan government to eventually transfer the prison at Parwan to Afghan control.

But that process is fraught with problems. Afghanistan’s judicial system is steeped in corruption and its jails are known for torture, creating a dilemma for international armies wishing to hand over suspected insurgents or terrorists.

Hoping to create a model for a new justice system, the U.S. military is building an entire judicial complex near the prison, training judges, defense lawyers and prosecutors and setting up a crime lab that includes equipment for forensics and DNA analysis.

“One of the reasons we built the judicial complex in Parwan is because we know corruption is endemic in the Afghan justice system,” said the State Department’s Gottlieb.

When Jamili was finally handed over to Afghan custody in September, his case file was incomplete. Afghan prosecutors said they found no indication of insurgent activity, and they allowed a reporter to go through the file.

Though Jamili was held until September 2010, his file ends in July 2008, making reference to just three interrogations and three polygraph tests.

Jamili stuck to his account throughout, stating that “he hated the Taliban,” and that he knew the camp in Pakistan was run by HiG, but “… when you do not have a place to stay or eat from, you would do anything for your family,” according to the file.

After each recorded interview, the American representative would make an assessment.

“The detainee did not show indication of deception and was willing to cooperate,” wrote one, noting that Jamili might have more information to reveal if asked the right questions.

“The detainee, in my opinion, remains a moderate threat to U.S./coalition forces and would not continue to be a part of the HiG group,” the representative concluded. Still, he recommended that Jamili remain in detention.

Afghan prosecutor Maulavi Saddiqi said he believed that someone likely framed Jamili.

“The main problem is with our own people — they give bad reports to the U.S. Army because of personal conflicts,” Saddiqi said. Saddiqi’s team decided there was no case against Jamili and six weeks later, they released him.

The stigma remains

At the time of his father’s arrest, Anwar Jamili was at first relieved when he heard that his father was in American hands.

“I said at the time that if we went to the coalition, he will be back in 10 days. If it were Afghan forces, it could be longer, but these were the Americans.”

But as time went on, the family grew angry. Anwar went to the American Embassy and asked them what he should do.

“I told them we can’t go back to Pakistan because I work with a U.S. NGO. You think we are al-Qaida. What should we do?”

Foster, from the International Justice Network, said Jamili was one of the lucky ones. He and his family were educated and able to navigate the complex system.

“The thing that was most helpful at his [Detainee Review Board hearing] was his ability to present witnesses who were sympathetic to folks who detained them,” she said. “They spoke English, were modern, had Western attitudes.”

Still, the stigma of detention remains, she added.

“It’s impossible to clear your name after having been captured by the U.S. government.”

Jamili might very well have been a terrorist recruiter who used his intellect and education to fight Americans. Or he could have been an educated Afghan refugee swept up in the turmoil of a conflict that has taken a terrible toll on his country.

In mid-November, Jamili’s family members gathered for their first Eid holiday together since the patriarch’s release. Jamili sat surrounded by his eight sons and his daughter, who is in law school, and shook his head.

“This is the reason that after 10 years the American people cannot win against the Taliban and al-Qaida,” Jamili said. “They are always preaching about human rights and respect for religious cultures. But in reality, they are not doing this, and it just increases the hatred of the people.”

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, Twitter, Digg and YouTube). 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, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.