Afghan Detainees Sent Home to Face Closed-Door Trials
by Candace Rondeaux, Josh White and Julie Tate
April 13, 2008
KABUL -- Afghan detainees held at the U.S. military prison at Guantanamo Bay, Cuba, are being transferred home to face closed-door trials in which they are often denied access to defense attorneys and the U.S. evidence being used against them, according to Afghan officials, lawyers and international rights groups.
Since October 2006, the United States has transferred approximately 50 detainees out of Guantanamo to the custody of the Afghan government, part of a policy aimed at reducing the prison population and ultimately closing the facility. Once home, many of the Afghans have been left in a legal limbo not unlike the one they confronted while in U.S. custody.
"These people have been thrown into a deeply flawed process that convicts people on inadequate evidence and breaks numerous procedural rules of Afghan law and human rights standards," said Jonathan Horowitz, an investigator at One World Research, a public interest investigation firm that works with attorneys and advocacy groups on human rights cases and has monitored some of the detainees' trials.
At least 32 detainees transferred from Guantanamo are being held in a high-security wing of Afghanistan's Pul-i-Charki prison, near Kabul. Built with U.S. funds and opened in April 2007, the wing is known as Block D or Block 4. Many detainees in that wing have been held for months without being charged or tried, according to interviews with detainees' relatives, American and Afghan lawyers familiar with their cases and one detainee who has been released.
Frustration with the process has been mounting among the detainees and their advocates. Early this year, about 20 detainees at Block D sent a petition to officials in Kabul asking them to look into why their cases had stalled. When the petition appeared to go unanswered, several detainees sewed their mouths shut with wire and thread and went on a hunger strike, according to Hayatullah al-Hashimi, a former deputy justice minister who visited the prison at the time.
The protest prompted Afghan President Hamid Karzai to send a government delegation to Block D to investigate. Hashimi said the detainees abandoned their hunger strike after officials vowed to review their cases. "They were very determined. They said, 'We just want to get our cases moving so they won't be sitting there static,' " Hashimi said. "Their general problem was that they wanted to know what their destination was, and they should know that. It is their right."
Zalmay Rasul, Afghanistan's national security adviser and lead overseer of the country's detainees, said that the legal process at Block D is "not perfect" but that many of the problems stem from Afghanistan's struggle to rebuild its frayed judicial infrastructure during a conflict that has severely strained resources. After 30 years of successive conflicts, and authoritarian rule under the Taliban, the country has essentially had to build its legal institutions from scratch, he said.
"After the attacks of 9/11 and the beginning of the war on terrorism, Afghanistan was a destroyed state," Rasul said. "Nobody knew who was who. There is no identification card. There is no file on these people. Today, we are just rebuilding our judicial system."'No Guarantee of Anything'
For several years after the 2001 U.S.-led invasion of Afghanistan, detainees held at Guantanamo were set free once they returned to this country, due largely to its weak government and lack of infrastructure. But in 2005, American officials began negotiating an agreement that called for the U.S. government to provide Afghanistan with $20 million in aid to build Block D, train detention officials to run it, and develop a set of legal mechanisms. Since the invasion, the United States has pledged at least $160 million for judicial reform in Afghanistan, according to the State Department.
Sandra L. Hodgkinson, deputy assistant secretary of defense for detainee affairs, said it was the Afghan government's decision to try detainees in its courts for crimes allegedly committed on its soil, rather than holding them indefinitely as "enemy combatants," as the United States initially had suggested. Since then, the United States has been closely tracking the criminal cases, but American officials said they do not have any control over the trials or the Afghan justice system.
Those tried in the Afghan system have included former Guantanamo detainees, as well as some of the more than 220 detainees transferred to Block D from the U.S. military prison at Bagram air base.
"There is no guarantee of anything other than the government is going to use their own justice system for crimes the detainees may have committed," Hodgkinson said.
"We try to ensure that the trials are conducted to meet international fair standards," she said. "We do provide guidance and training. It's not oversight. We don't manage it and we don't run it. . . . They are Afghan trials, run according to Afghan laws."
Hodgkinson said 83 such cases have been tried in Afghan courts, with a conviction rate of about 80 percent. Many of the convictions have resulted in sentences of time served, meaning the detainees were released.
Afghanistan's attorney general, Abdul Jabar Sabit, said detainees are tried on the basis of a 1987 Soviet-era national security law. Much of the evidence in the Block D cases comes from U.S. military investigators. Sabit said Afghan prosecutors review the detainees' files and in some cases attempt to gather additional evidence before proceeding to trial.
"The evidence that the Americans present to us is evaluated very strictly. If the collection of evidence is not strictly in accordance with our laws, then I'm quite sure the prosecutor has taken the right steps to get the evidence," he said. "In some cases, new evidence emerges; then the person is reinvestigated."
Afghan and American lawyers familiar with the legal process say prosecutions largely follow the framework employed by the Bush administration at Guantanamo. They argue that numerous violations of international legal standards have occurred in Block D proceedings and contend that judges have failed in many instances to call witnesses or examine evidence. Afghan defense lawyers assigned to detainees' cases have been denied access to their clients' investigative files, they said, and often have been barred from meeting with their clients before their trials. In many cases, defense attorneys said they have had little more than a few days to prepare for trials that can end in years of confinement for their clients.
"According to Afghan law, these cases should be resolved and heard in nine months, but in these cases none of them is done according to the law. The detainees were arrested by foreigners, charged by foreigners and kept in prison for years without normal due process," said Mohammed Afzal Mullahkeil, an Afghan lawyer who is handling the cases of about 25 Block D detainees. "When they were sent from Guantanamo, they were told, 'You are innocent and you will be free once you're in your country.' When they got to Bagram, they just brought them to Block D and said they should have a second trial."
In at least 10 cases, detainees were tried at Block D without lawyers present in trials that lasted less than an hour and ended with sentences of up to 15 years, said Horowitz, of One World Research, who recently traveled to Afghanistan to investigate cases. One Afghan government official who witnessed several trials said that in at least one instance, six Block D detainees were tried simultaneously in fewer than 90 minutes.
Tina Foster, an American lawyer whose nonprofit organization, the International Justice Network, represents several Afghan detainees, visited Block D this year. One trial she witnessed lasted 15 minutes, she said, and the evidence consisted of little more than a reading from an investigative document. No witnesses were presented, and the panel of judges asked few questions.
"The Afghans are essentially rubber-stamping what the occupiers of their country are suggesting," Foster said. "Even if the U.S. isn't there holding a gun to the judge's head, it doesn't mean that they don't ultimately have a hand in what's happening."
The U.S. ambassador to Afghanistan, William Wood, said many Guantanamo detainees have gone through the Afghan judicial system, served time and been released.
"There is a judicial process, and it is trying to reach some sort of conclusion about guilt, innocence, appropriateness of sentence," he said. "It is not where it should be. I don't want to claim that."'Where Is Mullah Omar?'
For Sabar Lal, the former commander of an Afghan border patrol unit in the eastern province of Konar, the odyssey to Block D began in August 2002.
Lal said he was turned over to U.S. forces by Afghans seeking revenge for his arrest of Taliban fighters near the Pakistani border. Once in American hands, he said, he was interrogated for several hours about his alleged ties to the Taliban, then taken to the U.S.-run military prison at Bagram, where he was questioned for a little more than two months. With his head shrouded in a black hood and his hands and feet shackled, he was next flown to Guantanamo, where he remained in solitary confinement for nearly two years, he said.
"When I was taken to Guantanamo, in every interrogation, they were asking, 'Where is [Taliban leader] Mullah Omar? Is he still alive?' Then they were asking, 'Where is Osama bin Laden? Is he still alive? What are his activities?' I said, 'I don't know. You should know where he is,' " Lal said in a recent interview.
For Lal, the accusations of involvement with the Taliban were ironic. He said he had fought the Taliban for several years as a member of the U.S.-allied Northern Alliance.
While it was impossible to verify much of Lal's account, he did tell his interrogators that he was a member of the Northern Alliance, according to the transcript of a December 2004 military tribunal at Guantanamo on his case. He also told them that, after the fall of the Taliban in 2001, he had assisted U.S.-led coalition forces in tracking down persons of interest. Three witnesses called at Lal's tribunal confirmed that he had fought the Taliban. Still, he remained in U.S. custody.
In June 2006, a delegation of Afghan officials visited Guantanamo and interviewed 94 detainees as part of Afghanistan's negotiations with the United States to return prisoners to their home country. Afterward, Lal was released to Afghan custody -- but he went straight to Block D, he said.
"I told them I am innocent. I have already had two trials. The people who were in charge said: 'Yes, we know. Just wait; you will be released,' " Lal said.
A nine-page transcript of a summary of the U.S. Defense Department investigation into Lal's case, dated last year, provided the bulk of the evidence that allowed Afghan authorities to hold Lal for months, records show. The file shows that no physical evidence was collected, no polygraph was taken and no other corroborating witnesses were produced in his case. Lal, 45, returned to his home and five children in February after he was released from Block D without further charges.
Advocates for other Block D detainees say the judicial system is targeting allies of the government here.
Hafizullah Khail was appointed chief administrator of a district in Paktia province by the Afghan government shortly after the fall of the Taliban, according to relatives, defense lawyers and a review of U.S. military records. In March 2002, he was arrested by the district police chief, a longtime political rival, and turned over to American forces, accused of having ties to the Taliban. He was taken to the U.S. prison at Bagram and later flown to Guantanamo.
Hafizullah was held in solitary confinement for at least 18 months before his case was first heard at a military tribunal in December 2004, according to court records and his cousin, Zahir Qadir. "His hands and feet were always in shackles, and he was threatened by his interrogators. He didn't know what the exact charges were," Qadir said. "The Americans said that he was appointed by the Taliban to be the district chief, but that was not true. He fought against the Taliban. They were enemies of each other."
Hafizullah's case was heard again by an American administrative review board Nov. 10, 2005, records show. Military officials charged Hafizullah with having ties to the Taliban through his brother, an allegation Hafizullah has strongly denied. "I do not know al-Qaeda. I haven't worked for the Taliban government," Hafizullah told the board. "I have no connections with the Taliban. I am still against the Taliban. The Taliban looted my house and put me in jail for one month."
Later, the same Afghan police chief who arrested Hafizullah and turned him over to U.S. forces in 2002 was also accused of supporting the Taliban and detained at Guantanamo. He and Hafizullah eventually became friends, according to Hafizullah's relatives and attorney.
Last year, Hafizullah was transferred to Block D. As of late last week, that's where he remained, according to his relatives and Horowitz. It is unclear when or whether his case will go to trial.
In late February, Karzai, the Afghan president, appointed seven Afghan officials to a special commission to review Block D cases. So far, the panel has reviewed 120 cases, while 137 other detainees' files have yet to be examined, according to Hashimi, the former justice official, who is also a member of the commission. More than 50 of the detainees in the cases reviewed are expected to be released for lack of evidence. Hashimi said more than 30 will be retried in Afghan courts, while five will have their sentences reduced because the commission determined their punishment "too severe."
White and Tate reported from Washington.
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