Guantánamo Review for Obaidullah, an Afghan Whose Lawyers Established His Innocence Five Years Ago

By Andy Worthington, April 20, 2016

Yesterday, Obaidullah (ISN 762), an Afghan prisoner at Guantánamo, became the 30th prisoner to face a Periodic Review Board, a review process set up in 2013 to review the cases of all the prisoners not already approved for release (by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in 2009) or facing trials.

Just ten men are in this latter category, but, when the PRBs were established in 2013, 25 others recommended for prosecution by the task force were made eligible for the PRBs, after a number of appeals court rulings made prosecutions untenable, along with 46 others described by the task force as "too dangerous to release," on the basis that there was insufficient evidence to put them on trial; in other words, that the information used to justify their imprisonment was not evidence at all, but, to a large extent, information obtained through the use of torture or other forms of abuse, or through the bribery of prisoners -- who were given "comfort items" in exchange for their cooperation.

Of the 30 cases reviewed to date, 20 have resulted in recommendations that the men in question be released, seven men have had their ongoing imprisonment recommended, and three decisions have not yet been taken. That's a success rate of 74%, but only nine of the 20 approved for release have been freed, and 35 others are still awaiting their reviews, even though, when the PRB process was first established, via an executive order in 2011, President Obama promised that they would be completed within a year.

Of the 27 decisions taken, only three have involved prisoners formerly recommended for prosecution, with one approved for release (and freed), and two others recommended for ongoing imprisonment. One of the two pending recommendations is also for a man formerly recommended for prosecution, and Obaidullah is also in this category, although it has never seemed plausible to me that he should ever have been put forward for prosecution.

As I explained in my article, "Guantánamo trials: another insignificant Afghan charged," written after he was put forward for a trial by military commission under President Bush in September 2008:

[He] was charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date”: essentially, a single claim that, “[o]n or about 22 July 2002,” 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 the thinness of the allegations, and despite the fact that Obaidullah maintained his innocence, he then had his habeas corpus petition turned down, in October 2010, when Judge Richard Leon of the District Court in Washington, D.C. concluded, as I described it at the time, that "his account was full of evasions and inconstancies."

Nevertheless, his lawyers refused to give up, and in 2011 a military investigator, Navy Lt. Cmdr. Richard Pandis, visited Afghanistan, establishing a coherent narrative in which Obaidullah was innocent. To cite just one example unearthed during the investigation, the fact that dried blood was found in the back seat of his car -- which the U.S. authorities attributed to him carrying wounded insurgents -- actually came about because, “two nights before the raid, Mr. Obaidullah’s wife had given birth in the car while on the way to the hospital.” The defense team added that he “had not volunteered that explanation about the blood” because of “a cultural taboo about discussing childbirth.”

Last April, the Los Angeles Times revisited Obaidullah's story, in an article entitled, "Family fears that Afghan prisoner at Guantánamo will be forgotten." In it, Ali M. Latifi spoke to his lawyers, who said they had "exhausted all potential remedies" in court, after their investigation failed to re-open any doors.

His lawyers also explained that Obaidullah had "turned his energy to writing poetry inspired by his experiences, which include time as a refugee in a Pakistani camp during the Soviet occupation of Afghanistan, as a shopkeeper in Khowst under Taliban rule and as a prisoner at Guantánamo."

In a 2011 poem, he wrote:

Singing nightingales are following the caravan
And with their childish and delicate tongues sing sweet melodies
They are disgusted with the murders and oppressions humankind commit

Obaidullah's lawyers also explained how claims that he was an Al-Qaeda member were "far-fetched." Maj. Derek A. Poteet, part of his defense team, said, "Anyone who knows anything about Al Qaeda knows they wouldn't recruit a 19-year-old Afghan who lived at home. It's an organization comprised primarily of Arabs."

The lawyers also explained how, in 2013, Obaidullah "joined more than 160 detainees in a hunger strike, during which he lost 40 pounds in five months." His brother, Fazel Karim, "said the strike helped draw worldwide attention to the treatment of Guantánamo detainees, who were banned from participating in communal prayers." As Maj. Poteet put it, "He lost the right to practice his religion."

Fazel Karim also explained how, as the Los Angeles Times described it, "Obaidullah's mother -- whose health has deteriorated during his detention -- worries that her son may be forgotten." As he said, "She is worried that her son will never return home and that those still in detention will just disappear."

It was also noted that Obaidullah's relatives "have appealed to Afghan officials, including former President Sibghatullah Mojadidi, but have repeatedly been told that the issue is a 'U.S. matter.'"

The Los Angeles Times also explained that Obaidullah's daughter, Mariam, "has seen him only on a computer screen" after the authorities allowed the International Committee of the Red Cross to "set up periodic Skype meetings." However, relatives said Mariam "longs for his physical presence." As Fazel Karim put it, "She cries out in her dreams for her father."

Nevertheless, the U.S. authorities continue to cling to their assessment of Obaidullah. In the government's Detainee Profile, it is claimed that he "received training in explosives from the Taliban and was part of an al-Qa'ida-associated improvised explosive device (IED) cell that targeted Coalition forces in Khowst, Afghanistan," and that, "During the early days of Operation Enduring Freedom, [he] also may have provided logistics support to fighters aligned with al-Qa'ida."

It was also stated that his IED cell "probably was led by Bostan Karim" (ISN 975), who is also facing a PRB, and had his habeas petition turned down in October 2011. According to the military, Obaidullah "had a close relationship" with him, and the cell was "under the ultimate control of al-Qa'ida senior paramilitary commander Abu Layth al-Libi."

It was also claimed that, "[d]uring early interviews," Obaidullah "admitted to working with Karim to acquire and plant anti-tank mines to target U.S. and other Coalition Forces," but those early interviews took place in Afghanistan, when he was being abused. It was also stated that Obaidullah "has provided no information of value since his initial interviews in late 2002 -- especially after learning of Karim's transfer to Guantánamo in March 2003." He apparently "stated that he was very afraid of Karim and wanted an opportunity to resolve any issues between them surrounding Karim's capture."

It was also noted that he has been "mostly compliant" at Guantánamo, and "has committed less than 100 infractions since his arrival -- a low number relative to other detainees -- including infrequent hostility toward the guards and failure to follow rules or instructions." However, for most of his time, he has been regarded as offering "evasive, implausible, and contradictory explanations to questions pertaining to terrorist activities."

Crucially, for his PRB, it was also noted that, because he "has provided little information to interrogators," the authorities "lack insight into his current mindset, which challenges both our understanding of what motivated his activities before detention and whether he would pursue extremist activity after detention." It was noted that he "has not expressed any intent to re-engage in terrorist activities or espoused any anti-U.S. sentiment that would indicate he views the U.S. as his enemy," and it was also stated that he "has indicated that he enjoys studying English and wants to be collocated with English speakers," and that, in March 2015, he "stated that he reads English books to expand his vocabulary and Arabic books to improve his Arabic." He has also said that "if he returned to Afghanistan, he would like to finish his education and then return to being a shopkeeper," although the authorities sounded a note of caution because some former prisoners, described as members of his alleged IED cell, "have reengaged in extremist activity in Khowst, Afghanistan," and "could provide him opportunities to reengage should he choose to do so."

In response, his civilian lawyer, Anne Richardson, and his personal representatives (military personnel assigned to help him prepare for his PRB) delivered powerful descriptions of his suitability for release. His representatives noted his enthusiasm for the PRB and for learning, and discussed his supportive family in Afghanistan, and Anne Richardson expanded on these points, based on the seven years she has known him. With reference to his poetry, she noted that one of his translators, for poems submitted during the habeas process, "was the distinguished poet Abdul Bari Jahani, who is now the Minister of Culture and Education, [and] who is the most esteemed living poet in the Pashto language." Mr. Jahani, she added, "has written a supporting letter regarding Obaidullah, urging this Board to recognize that he poses no threat."

She also stressed how cooperative he has been, describing how he "is and has for many years been one of the most compliant detainees, " who "served as Block leader [and] a translator for others who experienced conflict with the guards or other detainees."

These statements are posted below, and I hope you have time to read them.

Periodic Review Board Hearing, 19 April 2016
Obaidullah, ISN 762
Personal Representative Opening Statement

Good morning ladies and gentlemen of the Board.

We are the Personal Representatives of ISN 762. We will be assisting Mr. Obaidullah this morning with his case, aided by his Counsel, Mrs. Anne Richardson.

In the past four months, Obaidullah has earnestly participated in the Periodic Review Process and has attended all meetings with his Personal Representatives and his Counsel.

Obaidullah has conducted himself in a professional and patient manner throughout all engagements with Counsel and his representatives. He has a proven history of compliant behavior while detained at Guantánamo. He has engaged with the Joint Task Force Medical Staff in order to deal with health issues.

This teamwork has greatly improved his quality of life. He has taken advantage of all the opportunities for education and personal enrichment while detained at Guantánamo. These opportunities include courses in English, Life Skills, computers.

Obaidullah is fortunate to have a very supportive family remaining in Afghanistan comprised of his spouse, daughter, mother, brother and sister. His family members and the town elders have pledged unwavering financial support, a place of residence, and assistance with employment during his transition to the utmost of their ability.

Subsequently, Obaidullah will discuss both his past and his desire for a better life for himself in the future. We are confident that Obaidullah's desire to pursue a better way of life if transferred from Guantánamo, is genuine and that he does not represent a continuing or significant threat to the security of the United States of America. He is open to transfer to any country, but would prefer to return to Afghanistan if possible.

Thank you for your time and attention. We are pleased to answer any questions you have throughout this proceeding.

Periodic Review Board Hearing, 19 April 2016
Obaidullah, ISN 762
Private Counsel Opening Statement

Good morning. My name is Anne Richardson, and I am the Private Counsel for Obaidullah. I have been an attorney for over 25 years, and now work at a non-profit called Public Counsel in Los Angeles. I appreciate this opportunity to appear before you and to give you my observations regarding Obaidullah.

I first met Obaidullah in 2009, when I began to represent him in his habeas petition, along with the Center for Constitutional Rights. Since then, I have been down to Guantánamo about a dozen times to meet with him. I also regularly have telephone calls to stay in touch with him and keep his spirits up. Since about 2010, his English has been so excellent that we have not needed a translator unless we are discussing complex legal issues.

Obaidullah does not pose any threat to the United States. He was only approximately 19 when he was captured, from his own bed, in the middle of the night. He has a wife and a daughter, who was born just before he was captured, whom he desperately longs to see. His father died when he was very young, and his mother, brother and sister still live in the same village. Obaidullah's brother Fazel has a very successful mobile phone shop and has already built a new house for his own wife and children that he hopes to share with Obaidullah and his family. His family has written supportive letters, stating that they will do everything in their power to help him make an adjustment once he is released from Guantánamo. While he would like to be transferred back home, where he can immediately start working with his brother Fazel, and live with his extended family, he is willing to go wherever the United States transfers him.

In all the years I have visited and spoken with him, Obaidullah has never expressed any ideological ideas about America or any other country. He has been unfailingly polite and courteous in asking after my family and those of the other habeas attorneys. I did not know if he would have a problem meeting with female attorneys, but he has always shaken my hand, and seen me as a full peer of any male attorney he also meets with. Far from being a religious extremist, he discussed with us childhood games he remembered from Afghanistan, and has written some moving poems, some of which we have submitted to this Board. In fact, one of his translators during the habeas process was the distinguished poet Abdul Bari Jahani, who is now the Minister of Culture and Education, who is the most esteemed living poet in the Pashto language. Mr. Jahani has written a supporting letter regarding Obaidullah, urging this Board to recognize that he poses no threat.

Obaidullah is and has for many years been one of the most compliant detainees. He served as Block leader, and even before that, he served as a translator for others who experienced conflict with the guards or other detainees. He has taken English classes, computer classes, art classes, and takes every opportunity to improve himself and improve his life once he is released from Guantánamo.

Obaidullah is no longer young, and wishes nothing more than just to be back with his family. He proudly tells us how smart his daughter is, and how important her schooling is to him. Although he is willing to undergo any program the U.S. wishes to require, he does not need any rehabilitation.

At one time, he was charged in the military commission's process. The charges were later dismissed. We have submitted letters from a large number of his current and former military attorneys and investigators, as well as his habeas attorneys, all of whom express the same conclusion -- that he is not a danger to the United States or its interests. We also stand ready to assist him in his reintegration into life outside the prison, whether financially or emotionally, so convinced are we that he will be able to adjust and lead a lawful, humble life on the outside.

In conclusion, I urge this Board to find that Obaidullah is not a threat to the United States, and I trust that any lingering doubts this Board may have will be assuaged by meeting him yourselves.

Very Truly Yours,

Anne Richardson