JURIST Special Guest Columnist Jonathan Horowitz, Research Director at human rights and public interest investigation firm One World Research, says that notwithstanding the pending closure of the Guantanamo Bay prison and all the publicity surrounding that, if the US government doesn't change how it collects information and what rights it gives to detainees, it will continue to hold suspects in Afghanistan and elsewhere without sufficient evidence…

In early September 2008, a few days after I arrived in Kabul and retrieved my lost luggage from the airport, I sat down in an air-conditioned room at a guesthouse with Abdul Wahab and a high school teacher named Ghulam Sadeeq. Five years earlier, American forces had arrested Wahab’s brother, Mohammad Zahir, in a night-raid at his home. The United States then shipped him off to Guantanamo Bay Naval Base on the southern shores of Cuba, accusing him of being a member of the Taliban and of having control of Taliban weaponry.

I was focusing on Zahir’s case because his lawyers, Dan Malone and Peter Ryan from Dechert in DC, hired my small Brooklyn-based investigation firm, One World Research, to do what the U.S. government should have done far earlier and with greater accuracy: determine which, if any, of the U.S. allegations against Mohammad Zahir and their other clients were true.

The government’s willingness to do this could have prevented the government from detaining and physically and mentally abusing so many innocent men. The reasons why the United States detained, and continues to detain, the wrong people in its global “war on terror” range from the understandable to the ridiculous. Here’s a short list I came up with during three different trips I made to Afghanistan in 2008:

• the government’s reliance on untrained translators who misinterpret what people say to them; the government’s use of untrustworthy informants who manipulate the United States into detaining, or killing, rivals; profiteers and bounty hunters who provide the United States with false information and detainees in return for cash rewards;
• the use of coercive and violent detention conditions that push detainees into providing misinformation just so the abuses can cease; detaining people because they are, or were, low-level members of the Taliban even though the Taliban forcibly conscripted people to fight; and
• arresting innocent people who have the same, or similar, name as a person who is a legitimate threat.

In times of war it’s inevitable that innocent people will be mistakenly locked up. But for five years? Afghans I spoke with didn’t blame the United States for accidentally detaining their relatives or for not knowing the intricacies of Afghanistan’s people and culture. Afghanistan is, they admit, a complicated place. They did, however, blame the United States for not fact-checking their information and correcting their mistakes year after year. Afghans didn’t take kindly to the fact that poor intelligence led to prolonged detention and, by consequence, the collapse of a family business, physical and mental anguish for the detainee, or food not being put on the family’s table.

After landing in Kabul I called the people who I needed to speak to, such as relatives, friends, and former colleagues of the Guantanamo Bay detainees who Dan and Peter represented. To my amazement and pleasure, they were easy to reach and agreed at the drop of the hat to travel long distances to see me. I barely had the time to rest my knapsack and computer bag on my bed before I began preparing for my first interviews.

It was my fifth or sixth interview when I spoke to Mohammad Zahir’s brother, Abdul Wahab, and teacher Ghulam Sadeeq. I positioned the video-camera and checked the lighting and sound. With the video rolling, and with the assistance of a Pashtu speaking interpreter, Abdul Wahab began answering my questions about his brother.

Abdul Wahab told me that his brother was, formally, a member of the Taliban, but that membership per se reflected little about a man’s ideology, hatred of the United States, or links to Al-Qaeda. He described how the Taliban had forcibly conscripted Mohammad Zahir to be a cook; and he said that his brother wasn’t a hardened fighter or ideologue. Afghan experts and other detainee family members also described this common practice—how the Taliban would demand a fee or, alternatively, conscript one member of a family to join the movement.

When I interviewed Ghulam Sadeeq, a man who taught with Mohammad Zahir at the Mirza Khel High School, he explained that the school was non-religious, with a curriculum that included math, physics, chemistry, biology, geology, art, and languages. Sadeeq recalled how UNICEF and international military forces had provided pens, notebooks, and books to the school, as well as tents for children to study under.

Mirza Khel High School was just the type of school that the Taliban were, and are, notorious for attacking. Sadeeq said that teachers at the school would receive threatening letters from the Taliban. “Count the last seconds of your life,” one read. The more and more Sadeeq spoke the more and more I saw that his interview cast additional doubt on the U.S. allegations against Zahir. Why would a man who devotes himself to teaching join a group such as the Taliban that destroys schools?

More damning than the accusation that Mohammad Zahir was a Taliban cook, was the accusation that he was arrested with Taliban military documents in his house. Records from Guantanamo Bay show that Zahir admitted that these documents were discovered in his yard. But like many stories about Afghanistan and Guantanamo Bay the truth is more complicated. Zahir explained to U.S. officials that the Taliban had passed through his village one rainy night when he was not at home and forcibly gave the documents to his wife for temporary safe keeping. Zahir said that when he returned home and discovered what happened he notified the governor, but the governor ignored him. So, Zahir hid the package in his yard where Americans later found them.

To confirm this story, I asked Abdul Wahab if I could interview Zahir’s wife. He refused. Asking to speak to a man’s wife is a sensitive issue, especially since Zahir is from a very conservative part of Afghanistan. But Abdul Wahab agreed to ask Zahir’s wife about the package of documents and then travel back to Kabul to tell me what she told him.

A few days later, sitting again in front of the camera, Abdul Wahab told me, in his sister-in-law’s words, a similar chain of events that supported her husband’s claim, thus calling into question perhaps the strongest evidence the United States has against Mohammad Zahir:

He was very angry and said, “Why did you accept this?” He took the documents to the governor. Haji Asadullah was the governor. Mohammad Zahir told him the Taliban has given the documents to my wife at my house — have a look at this! The governor told him, “These are useless and take them away,” and Mohammad Zahir brought it back and buried it in the garden. He knew the Taliban might ask for it again. When the Americans surrounded the village, they discovered it from the garden.

Another of Dechert’s clients, Mohammad Rahim (not to be confused with a CIA detainee Mullah Mohammad Rahim who was captured in the summer of 2007 and later transferred to Guantanamo) is accused of, amongst other things, being a Taliban leader who went by the name of “Mullah Mo
hammad Rahim” and attended a meeting in a mountainous area in February 2003. Rahim was also accused and being a mujahideen foot soldier from 1985 to 1989.

Rahim’s cousin and neighbor, Haji Zakaria, told me that the accusations were ludicrous. The mountainous area where Rahim supposedly was in February 2003, located between the towns on Daychopan and Mian Nasheen in Zabul Province, was impossible to reach during the brutal and snowy winters from their home in Ghazni Province. Besides, Zakaria said, he was with Rahim during daily prayers and meals during that winter.

Mohammad Kareem, Rahim’s brother, also pointed out that Rahim long suffered from eye and stomach problems which made it impossible for him to fight or train — a claim that Rahim himself made some eight thousands miles away in Guantanamo Bay. There was another problem with the allegation: the United States funded and trained the mujahideen in the 1980s. Rahim’s family commented, jokingly and despairingly, if Rahim was jailed for being a mujahideen foot soldier then Guantanamo Bay should also be filled with the U.S. officials who supported them.

When I asked why he thought Rahim was arrested, Zakaria launched into one of the most commonly cited reasons for wrongful detentions in the U.S. war on terror. Zakaria described a land dispute between Rahim’s family and another family who had people working with international military forces. It was no coincidence, he said, that Rahim was captured after he undertook legal proceedings to settle the dispute and was about to win the claim.

Prior to my September trip to Kabul, I had traveled to Afghanistan earlier in 2008 while working for Dan and Peter on a slightly different project. The United States had returned several of their clients back to Afghanistan and they were being held in a wing of the Pul-i Charkhi prison known as “Block D” and investigated for domestic crimes. Dan and Peter asked me to investigate what role, if any, the United States had in their continued detention and prosecution.

Sandra L. Hodgkinson, Deputy Assistant Secretary of Defense for Detainee Affairs, says Washington doesn’t have control over the Block D detention facility or the Afghan justice process. This seems true on the surface. When the U.S. government transfers detainees from Guantanamo Bay and the U.S.-controlled Bagram Theater Internment Facility in Afghanistan to Block D they’re re-interrogated by Afghan security agents. Then they are charged by Afghan prosecutors for violations of Afghan domestic laws and tried before three Afghan judges. In early 2008, Afghanistan president Hamid Karzai assembled a high-level committee tasked with determining which detainees should be investigated for breaking Afghan law and who should be released. The committee has leafed through over 500 paper files from Guantanamo Bay and Bagram and has recommended the release of over 150 men, including many former Guantanamo Bay detainees.

Hodgkinson’s claim that the United States has no involvement in post-Guantanamo and post-Bagram detention affairs in Afghanistan is, however, an overstatement. The United States has gone so far as to recommend that a detainee be prosecuted under a specific article of the Crimes against Internal and External Security Act of 1987, a law that was promulgated under the Soviet-installed Afghan government. And after I sat through two Block D trials and spoke to Afghan officials, defense lawyers, and detainees’ family members, it’s obvious that the interrogators, prosecutors, and judges rely heavily, if not almost solely, on the evidence that the U.S. hands over to Afghan officials with each detainee it transfers. An Afghan judge told me frankly, “The evidence is based on information we get from Coalition Forces [i.e., the United States] and we are sure that people who were arrested are arrested for something they did wrong and we are sure that the U.S. is not lying.”

To say that the U.S. evidence heavily influenced the Afghan justice system isn’t to say that the U.S. evidence was solid, a point that Afghan defense lawyers and even Afghan prosecutors made clear to me. I had the opportunity to look at some of these files and saw how thin they were. They cast doubt not only on whether detainees should have been detained after Guantanamo, but on whether they should ever have been detained at all.

The files contain biographical data, a photo of the detainee, allegations against the detainee, polygraph results, and transcripts of interrogations conducted at Bagram and/or Guantanamo Bay. And yet, the information missing from the files was unavoidably apparent. Sabar Lal, another one of Dan and Peter’s clients, and a man who only goes by the name Nasrullah had the word “None” market next to the word “OFFENSE(S)” in the files. Their files named two witnesses, but had no “potential witnesses,” “physical evidence,” or “photographs.” Fortunately for Sabar Lal and Nasirullah, both are free men today. But their freedom doesn’t dilute the fact that they lived behind bars for several months in Afghanistan after having been detained for years at Guantanamo Bay on sparse, if not false, information.

Abdul Razzaq Hekmati wasn’t so lucky. He died of colorectal cancer on December 30, 2007 in Guantanamo Bay before his scheduled transfer back to Afghanistan. On a bone-chilling day in February with snow capped mountains in the distance I drove to the Block D detention facility where the head of the prison told me a room had been prepared for Hekmati to receive his cancer treatment. Later I reviewed Hekmati’s file. It contained a report of an inconclusive polygraph test he took on August 23, 2003 at Guantanamo. His evidence file also noted that there was one witness but no other “potential witnesses,” “physical evidence,” or “photographs” to support his years of detention.