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, 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.”