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The United States in Talks to Return the 17 Afghan Prisoners in Guantánamo

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Earlier this year, there was much discussion in the U.S. media about the possibility that, as part of negotiations aimed at securing peace in Afghanistan, the United States would release five high-level Taliban prisoners in Guantánamo to Qatar, where they would be held under a form of house arrest.

Those plans came to nothing, but last week the Associated Press reported that the Obama administration was “considering a new gambit to restart peace talks with the Taliban.” The new gambit would involve transferring some — or all — of the 17 remaining Afghan prisoners still held in Guantánamo to Afghanistan to be held in the Parwan Detention Facility near Bagram. Parwan is the huge prison established to replace the original prison at Bagram, where several prisoners were killed in the early years of the “war on terror.”

As part of the Obama administration’s 2014 deadline for withdrawing forces from Afghanistan, the Parwan Detention Facility is scheduled to be transferred to Afghan control in September this year. The fate of the remaining Afghans in Guantánamo is clearly part of the negotiations for all parties involved — the Taliban and the Karzai government, as well as the United States.

The previous plan — to transfer five senior Taliban figures to Qatar — floundered in part because the Taliban withdrew from direct negotiations, blaming the United States for being inconsistent and for involving representatives of the Karzai government in discussions — but also because Republicans in Congress opposed the plan.

Last week, Defense Secretary Leon Panetta moved to reassure critics that no actions would be taken if there was any threat to the United States. He explained, as the AP put it, that he “would have to sign off on the transfer and certify that the men did not pose a danger.” He stated, “There are no specific commitments that have been made with regard to prisoner exchanges at this point. One thing I will assure you is that any prisoner exchanges that I have to certify are going to abide by the law and require that those individuals do not return back into the battle.”

At present, no one is able to confirm whether or not the five Taliban leaders are included in negotiations. The AP noted that a senior U.S. official said that any transfer was “unlikely” to include the five, although Afghan officials and other diplomats said the inclusion of the five had “not been ruled out.”

Members of President Hamid Karzai’s peace committee — Afghan elders attempting to liaise with the Taliban on the government’s behalf — have been discussing the issue with U.S. officials in Washington, D.C. Ismail Qasemyar, the international relations advisor for the Afghan High Peace Council, said that there was a strong possibility that a transfer would include the five. The AP noted that Afghans “involved in the discussions” were “still angling” to secure the release or transfer of all 17 prisoners.

It is significant that the Taliban’s position has long been that the talks are partly dependent on the release of all the Afghans in Guantánamo. The AP also noted that Karzai “has long sought the return of all 17,” who “he sometimes calls brothers, as a point of national pride.” He has stated that their continued detention “undermines his credibility as a national leader” and that “Afghanistan’s own institutions should deal with captured insurgents.”

Speaking of the latest plan, Qasemyar said that it “would appeal to the Taliban,” and added, “The High Peace Council could use that opportunity as a goodwill gesture.” He also said that on the basis of what he heard in Washington, the Obama administration “was afraid that if they released a prisoner and he went back to fighting,” they “would lose faith before the Congress or before the people of the United States.” Sending prisoners to the Afghan government would overcome that problem, because “that responsibility would be shifted to our side.”

To be honest, I can’t see that argument persuading critics in Congress, who have become so rattled by their own paranoia — largely played out for cynical reasons — that they don’t want anyone to be released from Guantánamo for any reason. But from Karzai’s point of view, and for the U.S. plans to withdraw from Afghanistan, releasing them is, of course, essential.

What has not been talked about in the media is who these 17 men are and whether or not they actually constitute a threat to either U.S. or Afghan interests, but that is clearly also worth discussing.

The 17 Afghans

Five of the 17 are the Taliban leaders whose cases were discussed in relation to Qatar. They are: Mullah Mohammad Fazl and Mullah Norullah Nori, military commanders in northern Afghanistan, who are accused of having taken part in war crimes involving massacres of the Hazara, Afghanistan’s main ethnic group of Shi’a Muslims; Abdul-Haq Wasiq, the deputy head of Taliban intelligence; Khairullah Khairkhwa, the former Taliban governor of Herat province in western Afghanistan; and Mohammed Nabi, described as a senior Taliban official and who is alleged to have helped smuggle weapons to attack U.S. troops and finance the Taliban.

To add to these five, another Afghan regarded as significant is Muhammad Rahim, the last prisoner to arrive at Guantánamo, in March 2008. Almost all that is known about him is one line from the press release announcing his arrival, in which it was stated that he “was a close associate of Osama bin Laden and had ties to al-Qaeda organizations throughout the Middle East,” and “became one of bin Laden’s most trusted facilitators and procurement specialists prior to his detention.”

On the basis of my own detailed analysis of their cases, I believe the other 11 are not a threat to anyone. In most cases, they would have been released years ago if they had been held in Bagram and not sent to Guantánamo, although the U.S. authorities and the judges in the D.C. Circuit Court who have been defining the rules regarding the prisoners’ habeas corpus petitions do not think so.

Three of the eleven were put forward for trials by Military Commission under George W. Bush, even though the cases against them could not plausibly be described as constituting war crimes. Abdul Ghani, for example, a poor villager who scavenged for scrap metal, was put forward for a trial in 2008 because the authorities claimed that he had played a part in attacks and planned attacks as part of the insurgency against U.S. forces. Ghani has always refuted the charges, and the charges against him were dropped before Bush left office and have not been reinstated.

Another insignificant Afghan prisoner is Mohammed Kamin, accused of spying and planting mines, who was also put forward for a trial in 2008, although the charges were dropped in December 2009. A third insignificant Afghan put forward for a trial under Bush is Obaidullah (also identified as Obaydullah), who was chosen for trial under Barack Obama, although that plan also has not progressed to any kind of a hearing. He 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.”

A fourth man, Abdul Zahir, was accused of being a translator for al-Qaeda member Abd al-Hadi al-Iraqi (who was transferred to Guantánamo as a “high-value detainee” in 2007); of being a money courier for members of al-Qaeda and Taliban; and of taking part in a grenade attack on a vehicle carrying Toronto Star journalist Kathleen Kenna, her husband, Hadi Dadashian, photographer Bernard Weil, and an Afghan driver in Zormat on March 4, 2002. Zahir was put forward for a trial by Military Commission in January 2006, when he stated that he did not take part in the grenade attack. He was the only one of the ten prisoners charged in the first incarnation of the Commissions who was not charged again after the Commissions were ruled illegal by Congress in June 2006 and were revived by Congress later that year.

Four of the Afghan prisoners lost their habeas corpus petitions, despite there being nothing that could be regarded as evidence, except, perhaps, in the case of Khairullah Khairkhwa, mentioned above, who lost his habeas petition in June 2011. Another was Obaidullah, also mentioned above, who lost his habeas petition in October 2010. The others are Shawali Khan and Karim Bostan.

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 judges of the D.C. Circuit Court refused his appeal last September, apparently consigning him to Guantánamo forever on an apparently legal basis.

Karim Bostan, a preacher and a shopkeeper, was seized on a bus that traveled regularly between Afghanistan and Pakistan. He was reported to have been “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. Other allegations were made by Obaidullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan) while he was being abused by U.S. soldiers in Afghanistan. Despite this, Bostan’s habeas petition was denied in October 2011.

The other five Afghans have not been put forward for trials and rulings have not been made on their habeas corpus petitions. There appears to be no good reason for them to be held, with two possible exceptions — Haji Wali Mohammed and Haroon al-Afghani. Mohammed was reported to have been involved in some serious financial transactions involving the Taliban but does not appear to constitute a military threat. Al-Afghani, who was transferred to Guantánamo from Afghanistan in June 2007, was described by the Pentagon on his arrival as a “dangerous terror suspect.” He was “known to be associated with high-level militants in Afghanistan,” and had apparently “admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL).” Like Muhammad Rahim, however, not a word about his case has emerged publicly since his arrival five years ago.

Of the other three, the first is Khi Ali Gul, who was captured in Khost and accused of taking part in a bomb plot and being part of a Taliban assassination team. During his long years in Guantánamo, he has stated that he fought with U.S. forces in Tora Bora and described one occasion when “the Americans were sleeping and we were guarding them.” He added, “If I were their enemy, I would have killed them all.” He was captured at a checkpoint, where, he said, “there were some people that I had a dispute with,” and he added that they “told the American soldiers a lie,” and he was then arrested.

The second is Mohammed Zahir, 48 years old at the time of his capture in July 2003, who stated in Guantánamo that he was a teacher. He said that he had been set up by Taliban sympathizers who arranged for his arrest by telling lies to the U.S. forces. In contrast, however, the U.S. authorities claim that he was employed by the Taliban in the Secret Information Office in Ghazni and that he “possessed information associated with weapons caches, arms dealings, and Taliban personalities.”

The third man — and the last of the eleven — is Haji Hamidullah, the son of a mullah and someone with political influence. He explained that he had been imprisoned by the Taliban and had then fled to Pakistan. He returned after the U.S.-led invasion, when, he said, an opponent fed false information about him to U.S. forces, alleging that he controlled a cache of weapons and led a group of 30 men who had conspired to attack coalition forces near Kabul.

Reasons for release

Whether freedom or justice will ever be delivered to these men is unknown. In December 2009, Kathleen Kenna, who was seriously injured in the attack that was alleged to have been undertaken by Abdul Zahir, wrote an op-ed for the Toronto Star that should have shamed the U.S. authorities. She wrote, “For almost eight years, we have all waited for justice. We don’t seek retribution. We’ve made it clear we cannot identify our attackers. We seek real justice, not a contrived justice.”

She added

I don’t believe in indefinite detention without trial…. The Pentagon has assured us, almost annually since his arrest, that this would be the year of Zahir’s trial. My husband and I hoped this meant true justice would be served, and also hoped it brought us all closer to the shutdown of Guantánamo…. We’re not lawyers, nor armchair arbiters of how the men of war from Afghanistan should be treated by the United States. After living in a war zone for months in Afghanistan, and closely following the war’s progress since then, we have strong convictions that any prisoner-of-war should be treated with dignity, and afforded all the rights guaranteed by the Geneva Conventions and international human rights laws. It’s what we would demand for any Canadian, American or other citizen — whether combatant or aid worker — captured and held in a country of war. It’s what we want for Zahir and all the Guantánamo detainees.

Further shame should come from the case of Obaidullah, who was discussed in an article in February this year in the New York Times, after his lawyers had sent an investigator to Afghanistan who had uncovered a case of mistaken identity that I reported here. Charlie Savage noted that it was “an accident of timing” that he was at Guantánamo, because a U.S. 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.”

As Savage also noted, Obaidullah was not included in the discussion relating to Qatar, because, “[like] some of the other Afghans at Guantánamo, he is not an important enough figure to be a bargaining chip.”

Perhaps he has now been promoted to the role of bargaining chip, but what he needs, more than this, is for there to be a recognition that he, Abdul Ghani, Mohammed Kamin, Shawali Khan, Karim Bostan, and others should not be sent from one prison to another, but should be freed. There may be arguments that the senior figures in the Taliban described above should still be detained, but not these men. For them, the loss of nine or ten years of their lives is more than enough.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.