The “Taliban Five” and the Forgotten Afghan Prisoners in Guantánamo

23.3.12

In the last three months, much discussion has focused on the possibility that, as part of negotiations aimed at securing peace in Afghanistan, the US would release five high-level Taliban prisoners in Guantánamo. Almost entirely forgotten are 12 other Afghan prisoners at Guantánamo, who are mostly so insignificant that they have no one to lobby for them, and are being rather disgracefully overlooked.

The first information about discussions regarding the release of prisoners emerged in a Reuters article on December 19 last year, which explained how secret negotiations between the US government and the Taliban had begun ten months earlier. As part of “the accelerating, high-stakes diplomacy,” Reuters explained, the US was “considering the transfer of an unspecified number of Taliban prisoners from the Guantánamo Bay military prison into Afghan government custody.”

The day after, at a UN Security Council debate on Afghanistan, the Afghan deputy foreign minister Jawed Ludin “stressed the government’s determination to pursue reconciliation efforts despite Taliban attacks and assassinations,” as AFP described it. “We believe the process may benefit from the establishment of an office, within or outside Afghanistan, whereby formal talks between relevant Afghan authorities and representatives of armed opposition, including the Taliban, could be facilitated,” Ludin told the council, and AFP noted that Afghan authorities had “put forward Saudi Arabia or Turkey as the best places to set up a Taliban liaison office abroad to enable peace talks to end the devastating 10-year insurgency.”

The third ingredient in the mix was the US Senate, where Sen. Saxby Chambliss, the senior Republican on the Senate Intelligence Committee, immediately began stirring up problems, stating, as Reuters described it, “Any discussion of prisoner transfers should only be done after an agreement to cease hostilities has been reached, and should be done in the open, with thorough oversight from Congress and visibility for the American people about exactly who these detainees are and what terrorist acts they committed.”

This second Reuters article was also noteworthy because it identified the number of Taliban prisoners being discussed — five in total — but it was not until the New Year that further details emerged. On January 3, the Taliban announced that they had held “preliminary talks with relevant sides, including Qatar” to open an office, and spokesman Zabihullah Mujahid said, “We are right now ready … to have a political office overseas, in order to have an understanding with the international community.”

Two days later, on January 5, it was revealed that another key element of the negotiations was not to secure peace, but was a prisoner swap involving the five men being released in exchange for Bowe Bergdahl, a 25-year-old US Army sergeant from Hailey, Idaho, who was taken prisoner on June 30, 2009 in Afghanistan. However, after an initial flurry of interest, this aspect of the story inexplicably retreated from view, so that, on February 11, when the Wall Street Journal published profiles of the five men said to be the object of negotiations, Bergdahl was not mentioned at all, and the article simply asked “why the US would trade anyone in exchange for nothing more than a Taliban promise to talk.”

Despite this, the negotiations seemed to be proceeding smoothly. On March 10, the day after the US and the Karzai government signed a historic deal intended to secure the transfer of the Parwan detention facility (formerly known as Bagram) to Afghan control as part of the US withdrawal planned for 2014, it was reported that the five Taliban leaders at Guantánamo had told a visiting Afghan delegation they agreed to a transfer to Qatar, “under conditions that are less secure and less restrictive than at Guantánamo,” as the Associated Press described it, and which, at the prisoners’ request, would also allow them to be reunited with their families.

Although there was opposition from some quarters in the US, it seemed, for a few days, that a deal was possible, but then, last Thursday, the Taliban suspended negotiations with the US after it emerged that, on Sunday March 11, a lone gunman, Staff Sgt. Robert Bales, had gone on a rampage and had shot dead 16 civilians, including nine children.

What will happen now is unknown, but Bowe Bergdahl remains a prisoner of the Taliban, and President Obama also needs to resume negotiations with the Taliban if the US is to have any chance of leaving Afghanistan in anything resembling an orderly manner.

Moreover, although I have no desire to see dangerous men released from Guantánamo without adequate supervision, this does not seem to be the plan, despite the Wall Street Journal alarmingly claiming that, once in Qatar, “the US will have lost all leverage over their fate, and the likelihood is that they will eventually be released outright, be traded in a prisoner exchange, or escape. Some or all are likely to rejoin their terror trade.”

Of the five, it is difficult to gauge whether they pose a threat now, or would in future, although they include men with fearsome reputations — Mullah Mohammad Fazl and Mullah Norullah Nori, military commanders in northern Afghanistan, accused of war crimes — who might well take up arms against US forces if freed in Afghanistan. Also held are: Abdul-Haq Wasiq, the deputy head of Taliban intelligence; Khairullah Khairkhwa, the former Taliban governor of Herat province in western Afghanistan, whose lawyers have stated that he was not “ideologically committed to the Taliban” (although he too has been accused of war crimes); and Mohammed Nabi (aka Mohammed Nabi Omari), described as a senior Taliban official, who allegedly “helped smuggle weapons to attack US troops and finance the Taliban.”

If hostilities are to end in Afghanistan, then these men should be released anyway, unless there are specific crimes with which they can be charged. However, what is also of interest, as an example of the many distortions engendered by Guantánamo, is the fact that there are 12 other Afghans at Guantánamo — none of whom are regarded as being as significant as the men mentioned above — but who will continue to be held, possibly forever, even if successful negotiations involving their more significant compatriots resume.

This, sadly, is a disgrace, as the reasons for the continued detention of these 12 men — perhaps with the exception of one, Muhammad Rahim, regarded as a “high-value detainee,” who arrived at Guantánamo in 2008 — are far from compelling, and it is clear that, if they had been held in Bagram instead of being transferred to Guantánamo, they would have been released by now. They include three men who, along with Khairullah Khairkhwa, have lost their habeas corpus petitions — although none of the three can seriously be regarded as a threat.

The first of the three, Shawali Khan, whose habeas petition was denied in September 2010, was a shopkeeper, who seems, quite clearly, to have been falsely portrayed as an insurgent by an informant who received payment for doing so. To add further shame to the ruling, the right-wing judges of the D.C. Circuit Court refused his appeal last September, apparently consigning him to Guantánamo forever.

Next up was Obaydullah (aka Obaidullah), who faces allegations that he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.” Despite there being no actual evidence against him, he lost his habeas petition in October 2010.

The third man, Karim Bostan, a preacher and a shopkeeper, was seized on a bus that traveled regularly between Afghanistan and Pakistan, and was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone,” which he had apparently been asked to hold by a fellow passenger, Abdullah Wazir (who was released from Guantánamo in December 2007). Other allegations were made by Obaydullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan), while he was being severely abused — or tortured — by US soldiers in Khost and Bagram. Despite this, Bostan’s habeas petition was denied in October 2011.

These are not the only insignificant prisoners still held. Alarmingly, another poor man, Abdul Ghani, who scavenged for scrap metal, was put forward for a trial by military commission under President Bush in 2008. The authorities claimed that he had played a part in attacks and planned attacks as part of the insurgency against US forces, although his lawyers have disputed his purported involvement. The charges against him were dropped before Bush left office, and have not been reinstated, but he remains held, with no end to his detention in sight.

Similar — and still held — is Mohammed Kamin, accused of spying and planting mines, who was put forward for a trial by military commission in March 2008, although that also never materialized, and the charges against him were dropped in December 2009. In addition, Obaydullah was also put forward for trial by military commission under President Bush, and was also chosen for trial under President Obama, although that plan has also not progressed to any kind of a hearing.

In reflecting on these abandoned Afghan prisoners, the most significant development recently was that the case of one of them, Obaydullah, was discussed in an article in the New York Times, in which Charlie Savage realized that, as mentioned above:

It is an accident of timing that Mr. Obaydullah is at Guantánamo. One American official who was formerly involved in decisions about Afghanistan detainees said that such a “run of the mill” suspect would not have been moved to Cuba had he been captured a few years later; he probably would have been turned over to the Afghan justice system, or released if village elders took responsibility for him.

He was the focus of an article because his military defense team had sent an investigator to Afghanistan, who “talked to village elders, neighbors and family members who corroborated crucial aspects of the benign explanations offered by Mr. Obaydullah, and they concluded that certain intelligence about him had been ‘mischaracterised.'”

Despite this, the Justice Department is still maintaining that he “was plainly a member of an al-Qaeda bomb cell,” and is determined to continue holding him, possibly forever. What this gains the US, at a cost of nearly $800,000 a year, is unclear, unless it is simply to save face. Certainly, anyone with knowledge of the detention situation in Afghanistan and Guantánamo would agree with the US official mentioned above, who explained that, had he been seized at a later date, Obaydullah would have only been held in Bagram, and would, by now, have been a free man. Moreover, it is clear that this also applies to the other “run of the mill” Afghan prisoners still held.

As Charlie Savage also noted, in a comment that ought to resonate with anyone in power who cares about fairness, “Mr. Obaydullah is not … among the five senior Taliban prisoners who might be transferred to house arrest in Qatar if an agreement can be reached in connection with talks to end the war. Like some of the other Afghans at Guantánamo, he is not an important enough figure to be a bargaining chip.”

How depressing for all concerned — the US government and the prisoners themselves – when the best reason that can be found for their ongoing detention is that they are “not an important enough figure to be a bargaining chip.”

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 June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

10 Responses

  1. Tashi says...

    Hi Andy –
    I was very upset while watching Aljazeera recently. There was some American ‘expert’ speaking on the recent Quran burnings. She was defending the Americans, claiming it was a innocent mistake. She was angry that the Afghani’s would use that incident as an opportunity to take revenge and kill American soldiers. I was sitting there, watching – asking myself – how does anyone justify going to a country, bringing tanks, bombs, soldiers and ripping that country apart with war? Then those same people (the invaders) question the rights of those who fought/fight back – (as well as torture and detain them for indefinite periods of time). Aren’t the Americans the first to spout off about justice, rights, self defense and national security – does that rule only apply to them (and their allies)?

  2. Andy Worthington says...

    Apparently so, Tashi. It’s the imperial mentality, and the refusal to accept that, if the tables were turned, there would, understandably, be resistance. The British were the same, when they were the dominant empire — and the same mentality still infects the UK’s leaders (see Blair and Cameron) in their involvement with occupations of other people’s countries. However, as the dominant military empire, the US demonstrates the most blatant disregard for the feelings of those whose countries are occupied.

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  5. arcticredriver says...

    Thanks! This is an important story.

    Over the last couple of days some US sites reported that Obama quietly released the “Taliban five” over the weekend. They complained that Obama didn’t insist the Taliban release US GI Bowe Bergdahl, in exchange. http://www.ynetnews.com/articles/0,7340,L-4411028,00.html http://frontpagemag.com/2013/dgreenfield/obama-frees-taliban-from-gitmo-neglects-to-exchange-them-for-captured-us-soldier/

    I didn’t see anything in more mainstream sites, so I am going to assume it is a false report.

    Cheers!

  6. Andy Worthington says...

    Thanks, arcticredriver. Yes, I’ve seen nothing elsewhere, so I imagine it is a false report. I do imagine, however, that US officials haven’t forgotten Bowe Bergdahl, and are still looking for ways to resume negotiations.

  7. arcticredriver says...

    Finally, after years of negotiation, the Obama administration did agree to release the Taliban five in exchange for Bergdahl.

    The Obama administration seems to have decided to continue to demonize the five men, and the press is echoing the fears that the five men will rejoin hostilities as soon as they get a chance.

    Lawfare quoted Washington Post reporter Kevin Sieff, who chose to uncritically echo the DoD allegations, without applying one moment of critical examination. I posted this comment to the Lawfare article, but, since it may be deleted at any time, I am going to take the liberty of posting it here.

    Journalists serve public safety very poorly when they merely echo the allegations the DoD has put forward to justify the allegations against these men.

    Were these men within the Taliban’s leadership circle back in 2001? Yes. Does that mean they will join the Taliban in 2014, or 2015?

    It is a huge mistake to treat the Taliban’s leadership as a monolith, when there is evidence that it was a loose coalition, with many factions. I read about Khirullah Khairkhwa, in detail, when I worked on his wikipedia article. I read the transcript of his 2004 Combatant Status Review Tribunal, which I doubt Kevin Sieff bothered to do.

    Khairkhwa acknowledges he had served in the Taliban’s Ministry of Foreign Affairs, and that he had been appointed the Taliban’s Governor for Herat Province. But he described himself as a career civil servant. He described himself as a senior police official in Kabul, serving the regime that was nominally in charge of Afghanistan, during the warlord period that ended with the Taliban’s capture of Kabul. As a career civil servant he served the new regime.

    Khairkhwa testified that newly appointed President Hamid Karzai had personally phoned him, and offered him amnesty, if he surrendered himself. Khairkhwa said he planned to surrender and accept this amnesty, but he was captured first. The part of his testimony where he said he planned to surrender is questionable. But there is nothing in the records that the the USA has made public that would suggest analysts ever took the obvious step of confirming or refuting whether Khairkhwa had been personally offered an amnesty by Karzai. I believe it was an important point — if he had been a diehard Taliban militant Karzai would not have offered that amnesty.

    What the public record shows was that, like fellow Guantanamo captive Abdul Zaeef, he had been a protege of Muttawikil, who had been the Taliban’s Minister of Foreign Affairs, and the leader of the moderate wing of the Taliban who had argued that the Taliban should have avoided war by turning over Osama bin Laden and his band, back in late September of 2001.

    Not often reported, what the public record shows, is that Muttawikil tried to warn the USA, in July or August of 2001, that al Qaeda was planning a sneak attack.

    Let me quote from the wikipedia’s coverage of the BBC report:

    According to the BBC, Tohir Yo‘ldosh (leader of the Islamic Movement of Uzbekistan) learned, prior to the attacks, that al Qaeda was planning to use hijacked airliners to attack the United States on September 11, 2001. The BBC reported that Yo‘ldosh then informed the Taliban’s Foreign Minister, Muttawakil, who sent an envoy to warn the USA of al Qaeda’s attack plans prior to September 11, 2001. The reason the BBC offered for Yo‘ldosh to initiate an advance warning to the USA of the attacks was that he was concerned that an al Qaeda attack on the USA would trigger an American counter-attack, which would imperil the safe haven his group had been enjoying in Afghanistan.

    If the USA had provided moderates within the Taliban with more time, could they have won over their more hardline colleagues, and convinced the Taliban’s leadership to turn over Osama bin Laden and his gang? We’ll never know.

    But I am in no doubt that it would have been much better if the USA had treated Muttwikil, and his proteges, as potential allies, and not subjected them to years of torture.

    Muttawikil spent 18 months in brutal US custody, in Afghanistan. But, following his release he did not rejoin the Taliban, Rather, he has taken positions radically at odds with the Taliban, such as supporting the education of women and girls.

    Why do US authorities fear these five men will become enemies, after their release? I believe the answer is one word. Torture.

    I didn’t just read Khairkhwa’s OARDEC documents. Over the course of several years I ploughed through every page OARDEC made public. There is a phenomenon I came across, over and over again. In some ways the annual followup reviews held in 2005, 2006, 2007 and 2008 were more fair than the initial 2004 CSRT reviews — in that the allegations used to justify the captives detention in 2004 were all kept classified, stripping the innocent men among the captives of an opportunity to refute the allegations against them. The allegations memos prepared for the later reviews were generally about four or five times as long, meaning the captives finally had a chance to answer those allegations. So captives had a fairer change to establish their innocence. As I read some transcripts, and the answers the captives had to the allegations, some men really seemed to establish they had been innocent civilian bystanders all along.

    When the officers at their hearing didn’t have any followup questions about their refutation of the allegations against them, I assumed that those officers had reached the same conclusion I had — that the captive had just effectively refuted all the original allegations that had been used to justify his detention.

    What happened next may shock some readers. Invariably the officers on those panels would ask the captive to convince them that, even though they had pointlessly been made to endure years of detention, they did not hate the USA, and that the brutality of their detention and interrogation hadn’t turned them into enemies.

    Sometimes those officers would explicitly assure the captives who had established they had arrived at Guantanamo as innocent civilian bystanders that their mandate included recommending the continued detention of men who had been turned into threats to the USA DURING their detention.

    Personally, after becoming much more familiar with his case than Washington Post reporter Kevin Sieff, I think there is a good chance Khairkhwa may follow in the footsteps of his mentor and colleague Muttawikil and Zaeef, and support their liberal positions — such as supporting the education of women.

  8. Andy Worthington says...

    Thanks, arcticredriver. I was away when the story broke, and plan to write abut it tomorrow, but thanks for puncturing at least one myth doing the rounds – that all five men will “rejoin hostilities as soon as they get a chance.” I think you have done a good job of demonstrating that there is no evidence that Khairkhwa poses a threat, but even in the cases of the others – at least two of whom have serious allegations against them of murderous activities in Afghanistan against other ethnic groups – there is no reason to presume they they will “rejoin hostilities as soon as they get a chance” either. Apart from the fact that the five “will be banned from traveling outside of Qatar for at least one year,” the Afghanistan they left – and the Taliban they left – 13 years ago are not the same now as they were then, and there may be nothing left for them to return to. More troubling to me, however, is the insinuation that the prisoners in Guantanamo are, to a man, some sort of homicidal killing machines, when there’s no evidence for that, although it is clearly the sub-text of the deeply flawed recidivism reports that have plagued efforts to close Guantanamo for many years – and which the Washington Post unhelpfully highlighted just today: http://www.washingtonpost.com/world/national-security/guantanamo-transfers-under-scrutiny-after-deal-with-taliban-over-bergdahl-release/2014/06/02/dea64ffa-ea60-11e3-b98c-72cef4a00499_story.html

  9. arcticredriver says...

    Repeated in just about every press report is that Mohammed Fazl and Norullah Noori “were present at the prison uprising where CIA agent Spann, the first American to die in the Afghan war, was killed.” (paraphrasing from memory.)

    Several important points not mentioned by the mainstream press. The way the DoD phrased its description of Fazl and Noori’s presence there was highly deceitful. They imply Fazl and Noori participated in hostilities there. If I am not mistaken Fazl and Noori meekly surrendered to General Dostum, the first chance they had, without engaging in hostilities at all. While I believe it was true that their captor Dostum took them to Qali-Jangi, didn’t they remain firmly in the custody of Dostum’s bodyguards? So how would their presence there be relevant?

    Fazl is accused of committing atrocities against “thousands” of Afghan Shia at some point during the Taliban regime. The Afghan civil wars are brutal. I have no doubt that the Taliban were capable of committing atrocities like killing thousands or tens of thousands of innocent civilians, or surrendered fighters — just as Dostum and Hekmatyar had done. If there was proof Fazl had played a role in an atrocity recognized by the UN, the options included handing him over to the organs of Afghan justice, for trial, sending him to the Hague, for trial. That the USA did neither suggests either that these allegations could never be proven, or that they were just innuendo.

    I don’t understand why Obama isn’t trying to counter the demonization of these men.

  10. Andy Worthington says...

    I have articles that will be along soon that will hopefully convey much of my thinking about the prisoner swap and the criticism of President Obama by the media and politicians. I absolutely agree, however, that the portrayal of Fazl and Noori as being somehow involved in the uprising at Qala-i-Janghi is profoundly fraudulent. Dostum had them in his own custody, and he took them there to try and get them to negotiate with the other prisoners, but they refused to do so.
    Fazl (and Noori as well) are accused of serious war crimes by the UN, but not by the US. However, I don’t think that’s because the allegations couldn’t be proven. I think it more likely that the US, which refuses to recognize the ICC, doesn’t want to do anything to encourage alleged Afghan war criminals to be sent there. I also think fundamentally they didn’t really care what Afghans did to each other before they got involved after 9/11 – unless it was to protest about the treatment of women (and ignoring the fact that the US has killed countless women – and children – in its almost numberless bombing campaigns).
    Finally, for now, I too can’t work out why the administration has been so inept in its presentation of almost everything to do with this story – how, for example, did they think portraying Bergdahl as a hero wouldn’t backfire when the deserter story was so prominent?
    Also, I don’t think portraying the freed Taliban in a positive light would be very useful, to be honest, especially with such serious allegations against two of them, but I do think it would have worth stressing the importance of negotiations with the Taliban prior to the December drawdown of troops.

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