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Representing a Gitmo Detainee - (an Update on the Case of Shawali Khan)

Website of the Law Offices of Leonard C. Goodman
by Leonard C. Goodman
July 10, 2010

In mid-2007, I took on the representation of an Afghan man named Shawali Khan. Khan had been detained at “gitmo” since February, 2003, without any charges or legal representation. He was in his mid-40s, grew up on a fruit orchard outside of Kandahar, Afghanistan, and had no formal education.

In 2000, there had been a drought on the farm and Khan had moved with his father and brother to Kandahar City where they opened a shop selling petrol products. When U.S. forces invaded Afghanistan in 2001, Khan continued to run his oil shop and even worked, for a short time, for the Karzai government as a driver.

In November, 2002, Khan was captured by some Afghan men who worked for a local warlord. Khan’s captors told U.S. officials that Khan was a terrorist, plotting against U.S. interests in and around Kandahar. (It is almost certain that the U.S. paid a bounty to Khan’s captors but this cannot be confirmed because, while the U.S. admits paying large cash bounties to warlords who turned in “al Qaeda and Taliban fighters”, it has refused to release any of these files.)

Khan was sent to the U.S. air base at Bagram where he repeatedly told his interrogators that he and his family had an oil shop in Kandahar and were not enemies of the Americans. Although the interrogators wrote in their reports that Khan appeared honest, he was sent to Gitmo where he remains to this day.

The U.S. requires any lawyer or translator working with a gitmo detainee to have a secret security clearance, which takes at least six months to obtain. I received mine in the summer of 2008 and was finally approved (by the Department of Defense) for a gitmo visit in the fall. To get to gitmo, you take a three-hour flight on a small commuter plane from Fort Lauderdale, Florida, to the Guantanamo Bay Naval Base on the south-eastern tip of Cuba. Lawyers and translators sleep in the “combined bachelor quarters.” For each of my four visits to the base, I was accompanied by Tariq, my Pashto translator.

On the morning of a visit, lawyers and translators take a ferry across the bay to the prison side of the base. Detainees are transported from their cells to a special interview room where they must remain shackled to the floor. Lawyers cannot share classified information with their clients but can only show them approved materials. We may bring them food (usually meatless Egg McMuffins from the McDonalds on the base), but any food items must be fully consumed during the visit. Lawyers may not leave any items with their clients – no food, books, magazines, or even materials relating to their case. Any notes which a lawyer takes during the visit are confiscated, reviewed and later faxed back to the attorney with any items deemed sensitive redacted out.

Most of the evidence against Khan (and against all detainees) is classified. To view this evidence or just about any item associated with the case, counsel must go to the “Secure Facility” located near Alexandria, Virginia. In addition, nearly all pleadings in the case must be viewed, composed and filed from the Secure Facility.

By far, the most frustrating part about representing a gitmo detainee is that there is so little lawyers can do for their clients. In June, 2008, right after Boumediene, I filed a habeas corpus petition in the D.C. District Court demanding an evidentiary hearing and Khan’s release. During my first visit in the fall of 2008, I excitedly told Khan about this petition and about the great writ of habeas corpus. Khan informed me that the guards had recently told him that he was cleared for release and would soon be going home to Afghanistan. He had even been visited by representatives of the Red Cross to help prepare him for the journey. This was news to me, but about a year later, the government lawyers finally disclosed that Khan had in fact been cleared for release but that decision had been revoked.

During my second visit, in January 2009, I again told Khan about the virtues of habeas corpus. I explained that his case was pending before a real federal judge and that he would have a real hearing where the government would have to produce real evidence to justify his continued detention (unlike the Mickey Mouse CSRT hearings Khan had already received at gitmo). I further explained that Khan would have an opportunity to testify at his hearing via video conference.

Khan agreed to participate and requested that this hearing be held as soon as possible. I promised to push the judge for the earliest hearing date.

During my next visit in mid-2009, I had to explain to Khan that the Court had granted the government’s request for a stay of all habeas proceedings while it conducted a new search through archived intelligence files for additional evidence against Khan. Khan was angry and frustrated. The fact that I shared his frustration did not comfort him.

That fall, the Court finally set Khan’s case for a merits hearing. I wrote to Khan to tell him the good news. But then, in December, the government again successfully moved, over my strenuous objection, to stay the merits hearing on the grounds that Khan had again been “cleared for transfer” at some future date unspecified. In January, 2010, I visited Khan for the fourth time and delivered the bad news that his hearing had again been postponed. (Shortly after this visit, Khan fired me but then later agreed to let me represent him at his hearing.)

In February, 2010, the Court lifted the stay and reset the merits hearing, acknowledging perhaps that the government was merely stalling for time. On May 13, 2010, khan’s hearing commenced, closed to the press and the public.

The government produced no live witnesses at the merits hearing. Instead, it offered classified documents from U.S. intelligence officers reporting that certain unidentified Afghan informants had named Khan as an anti-U.S. insurgent. In response, the defense offered nine sworn declarations from Khan’s family and neighbors, all of which refuted the charge that Khan was a terrorist. The defense also presented the live testimony of a professor and expert on Afghan terror groups and the published memoir of a U.S. journalist who had lived in Kandahar during 2002, each of which supported the defense claim that the allegations against Khan were fabricated by bounty hunters.

The merits hearing began on a Thursday and was scheduled to conclude that Friday with Khan’s testimony via video link. Unable to be in two places at one time, I had enlisted a colleague, fellow gitmo attorney Candace Gorman, to travel to the base and conduct the direct examination of Khan.

The U.S. considers any utterance of Mr. Khan a threat to national security and thus requires that all transmissions to the courtroom go through a secure and encrypted video link. On the Friday of Khan’s scheduled testimony, this encryption technology mysteriously malfunctioned. Fortunately, Ms. Gorman and Tariq agreed to spend the weekend at the base and, on the following Monday, Khan was able to take the oath and tell the Court that he was a shopkeeper and not a terrorist or enemy of the United States.

Following closing arguments, the Court took the case under advisement. A decision on Khan’s petition for writ of habeas corpus is expected any day.

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