Commentary

The Gitmo Five: a hypothetical threat?

By Norah Niland

6 June 2014

The idea that only some are entitled to due process continues to afflict US foreign policy.
Bowe Bergdahl in a video released by Taliban in Christmas 2009.

Bowe Bergdahl in a video released by Taliban on Christmas Day 2009.

The release of five Taliban members from Guantanamo in exchange for a US soldier who went AWOL five years ago has generated heated debate on the worthiness (or otherwise) of the deal that was facilitated by Qatari officials. The bulk of the commentary in mainstream Western media focuses on whether Obama and his Congressional, Republican opponents are justified in supporting or challenging the release of the Gitmo Five.

The five former detainees who were held in captivity for more than a decade were never charged, prosecuted or allowed their day in court in order to challenge their incarceration. Their extra-judicial and prolonged imprisonment as ‘unlawful combatants’ (or some version of this designation) persisted, notwithstanding Obama’s declared intent to close Guantanamo before he became President, and his subsequent 2009 executive order to close the facility. He also vowed to close an assortment of ‘black sites’ linked to night raids and other CIA activities in Afghanistan. Obama, who has played fast and loose with the law, did not repudiate ‘extraordinary rendition’ – a practice which involved the abduction and transfer of suspected Taliban and Al Qaeda operatives to countries not adverse to the use of ‘enhanced interrogation’ techniques, otherwise known as torture.  

Guantanamo is infamous for different reasons, including the use of questionable legal analysis to justify the denial of habeas corpus – due process rights – or the non-application of Prisoner of War status to detainees. But part of the untold story that is fuelling competing narratives in Washington, concerning the Taliban’s release of Sergeant Bowe Bergdahl, is the dramatic increase of the prison population in Bagram while Obama maneuvers to close Guantanamo.

The prison industrial complex
The Obama Administration has been eager to end its association with Bush-era policies and the related damage to the reputation of the Unites States. When Obama moved into the White House in January 2009, there were about 240 prisoners in Guantanamo and 600, in somewhat similar conditions, in Bagram. The prison is co-located with the largest US military base in Afghanistan. Towards the end of 2012, when the initial agreement to transfer the control and management of the Bagram facility to the Afghan government was concluded, the prison population had soared to more than 3000. This surge in the number of imprisonments, without trial, in a US controlled detention facility in Afghanistan, has paralleled Obama’s efforts to reduce the number of inmates in the US-run Guantanamo facility in Cuba. 

In line with Obama’s counter-insurgency surge, the prison in Bagram was renamed the Parwan Detention Facility, and a new complex was unveiled in November 2009, a short distance from the old prison (often referred to as Obama’s Gitmo). I declined to participate in a grand, media-friendly event to mark the opening of the new but empty USD 60 million facility, given the effective continuation of the post 9/11 detention framework. There was some tweaking of the overall policy, including the creation of a military tribunal to review cases on a regular basis. However, inmates were still denied a lawyer and had to rely on a designated military representative when their cases were presented to the Tribunal. 

The overhaul and revamping of the Bagram brand was part of the new Obama-era counter-insurgency strategy that, in principle, prioritised the safety of civilians as part of a larger ‘hearts and minds’ campaign. Brigadier General Mark Martins, who was the senior US officer in charge of re-branding Bagram, emphasised that detention would harm the war effort if it was not done properly. This reflected the findings of a 2009 Pentagon review, as well as the concerns of the US Department of Defense, that abuses and militant recruitment within prisons would strengthen the hand of the Taliban. But, as time has shown, US engagement in Afghanistan has rarely, if ever, benefitted from the numerous reviews and reflections undertaken to shape strategic direction.

Obama made a pledge to end the war in Afghanistan and, from an American perspective, he is doing that. By the end of 2014, the bulk of US troops will be homeward bound. But for Afghans the war will remain a concern of top priority. Afghans must also deal with the consequences of an American intervention that brought to power a coterie of US allies with an infamous track record of warlordism and predation ­- key factors in the mobilisation and rise of the Taliban movement in the 1990s. The political and economic systems that Afghans are set to inherit as different transitions unfold in 2014, include a monopoly of power in the hands of strongmen, and changing alliances that have eroded the space needed for inclusive and accountable governance. Afghanistan routinely comes in at the bottom of global indexes concerned with corruption, rule of law, and livelihood opportunities for the poor. The current number of internally displaced Afghans, who have fled their homes because of war-related concerns and other sources of insecurity, are greater than at any time during the period of Taliban rule in Kabul.

It is against this background, as well as the common characteristic of the Bush and Obama administrations of equating suspicion of ‘terrorist’ activity with indefinite incarceration, that conflicting views on the release of the Gitmo Five needs to be understood. Opposition to Obama’s decision on the swap that resulted in the release of five Taliban detainees will likely persist, even as he tries to wind down Guantanamo, where 78 of the remaining 149 inmates have been cleared for release, but modalities for which have not yet been worked out.

Although Obama is anxious to draw a line under Guantanamo, he remains indifferent to international law when it comes to fighting the Global War on Terror. While he has been downsizing the US military presence in Afghanistan, he has increased the use of drones and so-called targeted killings that often rely on weak or erroneous data, even as he has expanded the reach of the surveillance state. He is insensitive to the double standards inherent in the US sense of exceptionalism with its assumption that the safety of American lives outranks all other considerations.

Competing narratives
The narratives surrounding the release of the Gitmo Five point to the differences of opinion in Washington that have little to do with ground realities in Afghanistan.

First, US officials and others opposed to the swap involving Guantanamo detainees will likely persist in referring to the released as ‘terrorists’. Although the Gitmo Five have spent twelve years behind bars, US officials have not presented any evidence to support allegations that the detainees posed a threat that endangered Americans or others. Of course, it raises the question as to why they were incarcerated for so long on flimsy or non-existent evidence regarding their apparent danger to society, when such concerns evaporated while negotiating the end of one US soldier’s incarceration. Surely it is reasonable to ask if the declared threat was found hypothetical, after all those years of incarceration, or whether hypocrisy and double standards is an inherent feature of US foreign policy.

It is also worth noting in this context that the term ‘terrorist’ is widely used by a diverse range of governments to demonize their opponents. The list includes Assad in Syria, Rajapakse in Sri Lanka, Thatcher in Northern Ireland and apartheid South Africa when confronted with Nelson Mandela. However, there is no consensus on what this term means. This is particularly the case in Afghanistan, where many of Washington’s most prominent allies are associated with heinous crimes (including gender-based sexual violence), and methods of warfare that killed and displaced thousands of Afghans. US Special Forces have faced numerous charges of aiding and abetting militias who have killed, tortured, and terrorised Afghans suspected of siding with the Taliban. The US government watchdog, the Special Inspector General for Afghan Reconstruction (SIGAR) has complained, as recently as last November, of the US military subsidising Afghan companies with ties to the Taliban and other such groups.  In sum, the ‘terrorist’ label does not go far in today’s Afghanistan even if it is still used liberally by the politicians and mainstream media in the US.

Second, in contrast to the documented evidence of gross human rights violations by Karzai government officials and local militia leaders backed by the US, former BBC journalist Kate Clark (now with the Afghanistan Analysis Network), notes that much of the commentary in Washington and media reporting on the five “has been inaccurate”.  In a detailed review of the former detainees, Clark states that apart from Mullah Fazl, there is scant evidence of the others’ engagement in atrocities or specific acts of terror. Fazl, a chief of the Taliban army staff prior to his detention, was involved in the scorched earth policy that characterised the Taliban takeover of the Shomali area in 1999, when they routed the forces of Ahmed Shah Massoud. I visited Shomali shortly afterwards and spent time with the displaced population concentrated in the Panjshir Valley. I can attest to the widespread destruction of agriculture and other infrastructure, and heard numerous accounts of abductions as well as summary executions. Fazl is also associated with the Taliban push to control the Hazara population in the Central Highlands, where villages were destroyed and some 300 were massacred in Yakawlang at the beginning of 2001.

The most senior and perhaps most significant of the Gitmo Five is Mullah Khairullah Khairkhwa, who hails from Kandahar and was a founding member of the Taliban back in 1994. According to Kate Clark, the Mullah was seen as “one of the more moderate Taliban in leadership circles”. I met his staff in 2001 when displaced Afghans were pouring into Maslakh camp, on the outskirts of Herat in western Afghanistan, as a result of war and drought. At the time, the Taliban were subjected to sanctions and a Western-led agenda to isolate them, so that it was proving difficult to mobilise resources for humanitarian programmes. Mullah Khairkhwa was the governor in Herat at the time, and although he and his staff were suspicious of the international aid regime, they were anxious that maximum help was made available to the displaced and its distribution facilitated.

The three others who were released include a member of the Haqqani network that found and held Bowe Bergdahl captive, a civilian who worked in intelligence, and a former Taliban operative in northern Afghanistan.

The five former detainees are now in Qatar and, in principle, are obliged to remain there for at least a year.  It is difficult to project, based on the experiences of others who were released from Guantanamo, how they will go about reconstructing their lives. It is likely that they will spend time with their families before deciding what they will do in the future. It would be highly surprising if they did not retain some connection to the Taliban movement after their experience in Guantanamo, including the circumstances surrounding their eventual release.

Third, from a Taliban perspective, the arrival in Qatar of those who were prioritised for release is, no doubt, “blissful news” and an “historic achievement”, as described by the Talib narrator of the footage taken of the actual handover of Sergeant Bergdahl. The deal was negotiated and arranged via various intermediaries that did not involve Karzai government officials. However, whatever the narratives about ‘negotiating with terrorists’, a certain taboo has been broken that may or may not be of help to the Afghan government that takes over from the Karzai Administration in the coming weeks. Only time will tell if the release of the Guantanamo detainees will open opportunities for intra-Afghan peace negotiations. In the meantime, the negotiated release is likely to be used as a trump card by the Taliban.

The detention and release of the Gitmo Five and the calculation that some, but not others, are entitled to due process will continue to cast a long shadow, even when Guantanamo is finally closed. History is not on the side of those who flout international norms or those who argue for exceptions to advance their national or geo-strategic agendas. The hypocrisy of the assertion that detainees were held (without charge and in protracted confinement) because they represented a security threat to Americans will reverberate for some time. When Washington negotiated the release of one of its captured soldiers, the hypothetical nature of this ‘threat’ was made apparent.

~Norah Niland has spent much of her professional life with the United Nations, both in the field (including assignments in Sri Lanka, Thailand, Cambodia, Liberia and Afghanistan), and at HQ, working on humanitarian, human rights, and development issues. 

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