Time Runs Out for an Afghan Held by the U.S. - New York Times:
“They can’t prove anything against me because I never did anything wrong,” he went on. “The person that was giving you all that wrong information, this is the person that killed my two brothers, my sister, my father and two of my sons.”
"Abdul Razzaq Hekmati was regarded here as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999. But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself. For the next five years he was held at the American military base in Guantánamo Bay, Cuba, where he died of cancer on Dec. 30.
The fate of Mr. Hekmati, the first detainee to die of natural causes at Guantánamo, who fruitlessly recounted his story several times to American officials, demonstrates the enduring problems of the tribunals at Guantánamo, say Afghan officials and others who knew him.
Several high-ranking officials in President Hamid Karzai’s government say Mr. Hekmati’s detention at Guantánamo was a gross mistake.
Afghan officials, and some Americans, complain that detainees are effectively thwarted from calling witnesses in their defense, and that the Afghan government is never consulted on the detention cases, even when it may be able to help. Mr. Hekmati’s case, officials who knew him said, shows that sometimes the Americans do not seem to know whom they are holding. Meanwhile, detainees wait for years with no resolution to their cases.
In response to queries, a spokeswoman for the Pentagon, Cynthia O. Smith, said the military tribunals at Guantánamo contained “significant process and protections,” including the right to call witnesses.
While Ms. Smith would not discuss specifics, she said that there was nothing to indicate that Mr. Hekmati’s case was handled improperly, and that detainees at Guantánamo were given a range of protections, including “the opportunity for a detainee to be heard in person, call witnesses and present additional information that might benefit him.”
Whether those protections are sufficient has been widely debated and is now being considered by the United States Supreme Court. In the tribunals, which consider only whether detainees have been properly classified as enemy combatants, detainees are not allowed to have lawyers or see the evidence against them. The Supreme Court case will decide whether they have the right to broadly appeal their detentions in federal court.
Of the 275 detainees at Guantánamo, at least 180 have sought to challenge their detentions.
Several high-ranking officials in President Hamid Karzai’s government say Mr. Hekmati’s detention at Guantánamo was a gross mistake. They were mentioned by Mr. Hekmati in his hearings and could have vouched for him. Records from the hearings show that only a cursory effort was made to reach them.
Two of those officials were men Mr. Hekmati had helped escape from the Taliban’s top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati’s case, but to no effect.
“What he did was very important for all Afghan people who were against the Taliban,” Hajji Zaher said of Mr. Hekmati’s role in organizing his prison break. “He was not a man to take to Guantánamo.”
Hajji Zaher, whose father served as vice president under Mr. Karzai for six months, warned that the case of Mr. Hekmati, who is widely known here by his nickname, Baraso, would discourage Afghans from backing the government against the Taliban. “No one is going to help the government,” he said.
Mr. Hekmati never had a lawyer, said Zachary Katznelson of Reprieve, a British charity that represents a number of Guantánamo detainees. At his October 2004 review hearing, Mr. Hekmati specifically asked that Hajji Zaher and Mr. Khan be contacted to act as supporting witnesses.
The military tribunal president said the Afghan government did not respond to requests to locate the men, and ruled that they were “not reasonably available.”
Although both men are well known to the American authorities in Afghanistan, both Hajji Zaher and Mr. Khan said the American authorities had never asked them to appear.
Unidentified Accusers
In Mr. Hekmati’s tribunal at Guantánamo in 2004 to assess his status as an enemy combatant, American officials accused Mr. Hekmati of a variety of charges made by unidentified sources, and referred to him only as Abdul Razzaq, his first names, which are common in Afghanistan.
According to transcripts released by the Pentagon, the United States military charged, among other things, that Mr. Hekmati was “high in the Al Qaeda hierarchy,” acted as a smuggler and facilitator for it, and was “part of the main security escort for Osama bin Laden.” He was also accused of attending a terrorist training camp near Kandahar and of involvement in assassination attempts against Afghan government officials.
He was also identified as a senior leader of a 40-man Taliban unit, and even as supreme commander in Helmand Province.
That last allegation was rebutted by another unidentified detainee, who explicitly stated that Mr. Hekmati looked nothing like the Taliban commander and that the commander was “not the same person as the detainee,” according to the transcript.
Mr. Hekmati denied the charges, too, saying he did not even live in Afghanistan after the 1999 prison break, when he ran afoul of the Taliban. He insisted that most of the allegations had been directed against him by two of his personal enemies.
The first was Sher Mohammed Akhundzada, the post-Taliban governor of Helmand Province, who, Mr. Hekmati said, was directly responsible for his arrest after he reported the governor for corruption and for protecting a number of senior Taliban members in Helmand.
The second was Mohammed Jan, a distant cousin who had falsely denounced him as part of a long-running family feud. "
His family did not dare attend the funeral, fearful of both the Taliban and the Americans, friends said.
…In a report in February 2006 based on an analysis of documents released by the Pentagon, researchers at Seton Hall University School of Law, in Newark, concluded that no outside witnesses had ever been called to appear at Guantánamo. Lt. Col. Stephen E. Abraham, a former United States intelligence officer who had worked on the tribunals, stepped forward last June to criticize the tribunals.
In a submission to the Supreme Court, he condemned them for relying on generalized evidence that would have been dismissed by any competent court, and as being devised to rubber-stamp the administration’s assertion that the detainees had been correctly designated “enemy combatants” when they were captured and that they could be held indefinitely.
In a second submission, to the United States Court of Appeals for the District of Columbia Circuit in November, Colonel Abraham explained that he was “not aware of any realistic attempts” to “identify or even attempt to bring before the tribunal witnesses or their statements,” and concluded that the whole process “was designed to conduct tribunals without witnesses other than the accused detainee.”
That is one of the reasons Afghan officials have asked that Afghan detainees be transferred from Guantánamo to Afghanistan. “Of course a judicial process needs witnesses and documents and evidence,” Minister of Justice Mohammad Sarwar Danish said. “Most of these cases have not come to trial, and are not proceeding, and that is why we asked them to be moved here.”
After Mr. Hekmati was arrested, two of the men he broke out of prison, Mr. Khan and Hajji Zaher, said they appealed to American and Afghan officials for his release. “I asked President Karzai to help, but unfortunately it did not help,” Mr. Khan said. He said he also asked the American ambassador to Afghanistan at the time, Zalmay Khalilzad, with no result.
“We did try but it was not working,” Hajji Zaher said in a phone interview. “When they are sending someone to Guantánamo, they have their own rules.”
After Mr. Hekmati’s death at Guantánamo, his body was returned to Afghanistan and quietly buried in an unmarked grave in Kandahar on Jan. 8. His family did not dare attend the funeral, fearful of both the Taliban and the Americans, friends said.
As the Taliban has reasserted itself in much of southern Afghanistan, Mr. Hekmati’s son remains in hiding. Neither he nor any relative or elder of their tribe collected his father’s body.
“He is caught in the middle,” said Hajji Wali, a family friend. “He is scared of the Taliban and scared of the government and the Americans, because the Americans took his innocent father and they could take him, too.”…
