U.S. Investigation in Afghanistan Clears Obaidullah, an Afghan Still Held in Guantánamo

By Andy Worthington

According to the U.S. Justice Department, Obaidullah (also referred to as Obaydullah), one of 17 Afghan prisoners still held in Guantánamo, “was plainly a member of an Al-Qaeda bomb cell,” even though Obaidullah himself, and his lawyers, have always contended that, like so many of the 200 or so Afghans who have been repatriated from Guantánamo over the last ten years, he was actually seized by mistake.

In February, when discussions between the U.S. government and the Taliban were underway, regarding the possibility that five of the 17 -- all apparently significant figures in the Taliban -- would be transferred to Qatar as part of the peace process in Afghanistan, the New York Times picked up on Obaidullah's case, and reporter Charlie Savage recognized that, unlike the five senior Taliban figures, no one was pushing for his release, because he was "not an important enough figure to be a bargaining chip."

As Charlie Savage also reported:

It is an accident of timing that Mr. Obaidullah is at Guantánamo. One American official who was formerly involved in decisions about Afghanistan detainees said that such a “run of the mill” suspect would not have been moved to Cuba had he been captured a few years later; he probably would have been turned over to the Afghan justice system, or released if village elders took responsibility for him.

As it is, however, Obaidullah, who was just 21 or 22 years old at the time of his capture, is stuck at Guantánamo, where the supposed evidence against him -- though insubstantial -- saw him put forward for a trial by military commission under George W. Bush in September 2008, and led to him having his habeas corpus petition denied in September 2010. Describing the background to the case, Savage explained:

On the night of July 20, 2002, about two dozen American Special Forces soldiers raided a house in a village near Khost, Afghanistan. The unit was acting on a tip from an informant who said someone living there was hiding anti-tank mines for an insurgents’ cell. They found a cache of mines buried in a field. They also found a young man named Obaidullah, who was carrying a notebook with several pages of diagrams for wiring improvised explosive devices.""

However, on February 8 this year, Obaidullah's military defense lawyers filed a declaration in court, seeking to revive his habeas petition, after an investigation in Afghanistan, involving discussions with village elders, neighbors and family members, "corroborated crucial aspects of the benign explanations offered by Mr. Obaidullah." Maj. Derek A. Poteet of the Marines, one of his military lawyers, said, “With new evidence that brings into question the allegations against him, we hope we will be able to obtain a fair hearing, or that he will be sent home."

As Charlie Savage noted, when Obaidullah's habeas petition was denied, Judge Richard Leon stated that the evidence “unmistakably supports the conclusion that it is more likely than not” that he was with Al-Qaeda and/or the Taliban. Savage added, "During and after his arrest, Mr. Obaidullah’s accounts about the notebook and the land mines changed, and he is said to have confessed at a prison in Afghanistan that he had been part of a cell."

In Guantánamo, however, he recanted those statements, explaining that he had made false confessions, incriminating himself and another man, Karim Bostan, also still held, because he had been abused by U.S. soldiers. He also insisted that the mines "were left behind by a Communist commander who lived in his family’s house during the Soviet occupation in the 1980s," and said that "he had copied the diagrams [in the notebook] in August 2001 when the Taliban conscripted him to attend a military school, but that he ran away after a few days and was using the blank pages for other purposes."

Although Charlie Savage noted that intelligence analysts and Judge Leon had "concluded that Mr. Obaidullah had made up that explanation" after arriving in Guantánamo, the witnesses in Afghanistan -- members of his family, and others who knew him -- "corroborated his explanation," as the defense team explained, pointing out that "an American witness backed up his account of rough treatment in custody, including that he was struck in the head with a rifle," and providing a crucial explanation for a report that Judge Leon had highlighted. That involved a soldier who took part in the raid saying that "the Americans had also found a car with Taliban propaganda and dried blood in the back seat," and also reporting that "Mr. Obaidullah and a business partner [Karim Bostan] had been seen taking insurgents to the hospital after an accidental explosion."

As the witnesses explained, however, "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."

Despite this new evidence, Justice Department lawyers informed Obaidullah’s legal team that the government would oppose their request that Judge Leon reverse his ruling against Obaidullah.

This is a depressing state of affairs, and in the hope of establishing Obaidullah's innocence to a wider audience, I have included below a version of the declaration submitted to the court by the investigator for Obaidullah's defense team, Lt. Cmdr. Richard Pandis, who was assigned for a year to the Office of the Chief Defense Counsel, Military Commissions, to assist on the case.

How investigations in Afghanistan established Obaidullah's innocence

In the declaration, Lt. Cmdr. Pandis explained how his assignment began on February 27, 2011, working with Obaidullah's military defense team -- Lt. Col. Michael L. Acuff, Maj. Derek A. Poteet, and Capt. Jason D. Wright -- and how he was "disclosing newly discovered evidence that may assist in the habeas action, resulting from witness interviews in Afghanistan and in other countries."

After stating that he is an Intelligence Officer, currently assigned to the Naval Criminal Investigative Service (NCIS), who has "supported operations in El Salvador, Korea, Kuwait, Bahrain, North Arabian Gulf and Afghanistan," and that, in civilian life, he is a Special Agent with the Office of Personnel Management in the Office of the Inspector General, whose investigative duties include working complex fraud investigations with the Department of Justice and United States Attorney’s Office, Lt. Cmdr. Pandis explained the background to his investigation: how, in September 2008, charges were filed against Obaidullah, but, in June 2011, "the Convening Authority for military commissions dismissed Obaidullah’s charges without prejudice." He added, however, that, "Despite the dismissal, our office has been told by the prosecution that this remains an active case, so the defense has continued to investigate and prepare."

As a result, in spring and summer 2011, Lt. Cmdr. Pandis "interviewed most of the U.S. military personnel involved in 2002 in taking Obaidullah into custody," and, in November and December 2011, "traveled to Afghanistan and other countries to conduct a defense investigation," along with Maj. Poteet, and support including a translator who spoke Dari, Pashto and English. The team "conducted interviews of family-member and non-family-member witnesses with personal knowledge of matters related to this case," overcoming a number of significant obstacles to discover important new information.

As Lt. Cmdr. Pandis explained, although he was "familiar with the prior defense investigative efforts in the military commissions case" -- even though "the prosecution has provided no discovery information to the defense" -- this was the first time that information was "obtained from witnesses with personal knowledge about the source of the dried blood in the car, the reason the car was in the compound, and the existence of a non-family-member eyewitness to landmines present on the compound during the Soviet war of the same type as some of those found in 2002 when Obaidullah was taken into custody." As he also explained, "Previously this information and evidence was not reasonably available due to the extraordinary difficulties in conducting investigations in an overseas combat area," as well as cultural difficulties, which will be discussed in further detail below.

In examining why there was a car in the compound, and why there was dried blood in the car, Lt. Cmdr. Pandis referred to the habeas ruling in October 2010, in which
there was mention of an intelligence report indicating that Obaidullah "was seen taking injured individuals from the scene of an allegedly premature IED explosion." Investigating this claim, Lt. Cmdr. Pandis stated that he was "familiar with an intelligence report relevant to this allegation," which he believed to be "the primary report about this incident," and that he had also "interviewed key U.S. personnel who would have been involved in making statements related to this allegation." He also noted that he had "read a redacted, unclassified and publicly-released version of a Report of Investigative Activity from the Karim Bostan habeas case," which indicated that the second document was written by one U.S. person "taking a statement from another U.S. person."

In investigating whether Obaidullah and Karim were “seen,” or "visually identified at the time by the person who made the original report of persons ferrying wounded individuals," Lt. Cmdr. Pandis explained that a key U.S. witness "with personal knowledge" told him that "he made the inference that Obaidullah may have been one of the people described in the earlier report after seeing the blood in the vehicle found at the compound."

This "inference" is extremely important, as there is no other actual evidence. Lt. Cmdr. Pandis noted that the document from Karim Bostan's case only "refers to a previous incident," and, moreover, does not even "purport to be the original report of that incident," and, without disclosing classified information, he explained, "I have reviewed what I believe to be the original report of the allegation that persons were seen ferrying wounded individuals from an accidental IED explosion," and added, "my investigation has given me no reason to believe that Obaidullah or any other particular person was actually visually identified at the time of the report about injured persons being ferried in a vehicle. Instead, my investigation leads me to believe that the intelligence was unintentionally mischaracterized by individuals and documents describing it to the District Court."

Whether unintentional or not, this mistake has played a major part in losing Obaidullah the last ten years of his life, as has a misunderstanding about why there was a car in his compound, and what the source of the dried blood was.

As Lt. Cmdr. Pandis explained, "Publicly-released unclassified government documents discuss the alleged presence of dried blood residue in one of the two automobiles that was parked in the courtyard of Obaidullah's family compound on the night Obaidullah and two of his cousins were taken into custody." Seeking to "learn the source of the alleged blood residue and whether this could have been some substance other than blood, or other than human blood," and to "learn more about the ownership and lineage of the vehicles," Lt. Cmdr. Pandis discovered, from "Afghan witnesses with personal knowledge," that "the car containing blood stains was a Toyota Corolla hatchback borrowed, only days before Obaidullah’s arrest, for the express purpose of taking Obaidullah’s wife to the hospital for the birth of their first child, a daughter."

This was difficult to discover, primarily because, as Lt. Cmdr. Pandis explained, "there is a strong cultural taboo against speaking about a woman being in labor and the process of childbirth, in Afghanistan and particularly in Pashtun tribal culture." He added, "I was told that Pashtun women may speak about such things among themselves, but that they would not speak about such things to males, and never to males outside the family. I came to understand that it is considered shameful for someone outside of one’s family to have knowledge of such things." As a result, "It was difficult to get any witnesses to discuss the subject of childbirth, even generally. Witnesses outside the family expressed embarrassment at questions about another man’s child being born."

Having managed to secure witnesses, however, Lt. Cmdr. Pandis discovered a whole other narrative about Obaidullah, which was not previously known, and which not only seems to exonerate Obaidullah, but also to add a depressing angle to his ongoing detention, as he was seized just after his wife gave birth to a daughter he has not seen since the first few days of her life, who is now nearly ten years old.

As Lt. Cmdr. Pandis explained:

According to family-member witnesses with personal knowledge, it is normal custom for an expectant father to move out of the home as his wife nears term in her pregnancy, and other females in the family move in to take care of the expectant mother … Obaidullah had done so although he still lived in the family compound, and Obaidullah’s wife began to experience labor on a night about two days before the U.S. military raid which resulted in Obaidullah’s capture. Family members took Obaidullah’s wife in the Toyota Corolla which had been borrowed for that purpose, and began the drive toward the hospital in the city of Khost, about six kilometers east. Obaidullah was not in the vehicle …

[A]t this time in July 2002, militia checkpoints were prevalent on roads in this area. The family was required to stop at each checkpoint, wait for the cars in front of them to go through, and then explain their situation. Their progress driving Obaidullah’s wife to the hospital was significantly impeded by the many militia checkpoints along the road. Eventually, their trip was taking so long that they had to pull off to the side of the road because the infant was being born … Obaidullah’s wife gave birth in the back of the Toyota Corolla hatchback, with the seat folded down, off the side of the road near the city of Khost, Afghanistan in July 2002. Family members stated that the blood stains and residue resulted from the child’s birth inside the Toyota Corolla … [A]fter the daughter was born, the family members continued on to the hospital for an examination but the hospital did not keep birth or examination records at this time in 2002.

To discover more, Lt. Cmdr. Pandis "interviewed the owner of the other vehicle that was parked in the compound on the night Obaidullah was taken into custody, who stated that he never allowed others to drive his car, and that he would not have allowed Obaidullah’s family to borrow his car." He said that he "stated that Obaidullah’s family allowed him to park his car in their courtyard because he had no access to the road from his own house."

Furthermore, other witnesses "with personal knowledge" of the events explained that, "on the same night that Obaidullah was taken into custody, the U.S. forces seized the Toyota Corolla with blood stains from the courtyard," and that, although "family members tried to recover the Toyota Corolla which had been borrowed to transport Obaidullah’s wife," they "were unable even to learn the ultimate outcome or disposition of the car." As a result, "the owner of the car contacted the family seeking reimbursement for the value of the car," and although the family "tried to earn enough money to pay for the seized car for several years," they "eventually had to sell off part of their farm in order to pay for the seized car."

Filling in blanks in the story, U.S. personnel told Lt. Cmdr. Pandis that "the car containing blood stains was kept for several weeks at a nearby base," but "was eventually given by the U.S. forces to the local Afghan militia forces which had been working with them." Lt. Cmdr. Pandis added that he had "found no indication that samples of the blood residue were preserved," and that, because the current location of the car is unknown," he had "not been able to find a way to obtain any sample of the blood stains for scientific testing."

In addition, Lt. Cmdr. Pandis noted that cars remarkably similar to the one used for Obaidullah's wife's -- white Toyota Corollas and white-and-yellow Toyota Corollas -- were "by far the most common type of car in Khost," comprising "fifty percent or greater of the vehicles in Khost province." As a result, it was "not surprising that the vehicle seized from the compound with this color scheme would match a general description of a vehicle involved in another incident or report."

Ironically, witnesses told Lt. Cmdr. Pandis that "Obaidullah had never owned a car, and that they had never seen a Toyota Corolla parked in the compound before the birth of Obaidullah’s daughter." They also explained that "Obaidullah had very limited driving experience," and family members "stated that Obaidullah’s main driving experience was operating a tractor while farming," all of which made it even less likely that he "would have been involved in any other incident involving him driving a car."

Reporting about other difficulties in getting villagers to talk, Lt. Cmdr. Pandis noted that people were "extremely reluctant to talk about who may have provided information leading to the raid on the Obaidullah compound because of concerns over potential feuds that could erupt between relatives of the people involved if accusations were made." Nevertheless, he eventually ascertained, from "individuals who had lived in Obaidullah’s village," that two men who were not from the village but "had lived there for a period," were "rumored to have sold false information to Americans." He was also told that these two men later disappeared and their whereabouts were unknown.

Investigating other allegations, Lt. Cmdr. Pandis noted that publicly-released unclassified government documents alleged that there was "an association between Obaidullah and Al-Qaeda and/or Taliban forces," although family members and other witnesses insisted that Obaidullah had not associated with Al- Qaeda, and had only had anything to do with Taliban members "for the few days he was forcibly conscripted to attend a Taliban training school."

Some witnesses "described the process by which the Taliban conscripted young men to train to fight Massood’s forces [the Northern Alliance forces of Ahmad Shah Mahsood, assassinated two days before the 9/11 attacks]." According to these witnesses, "the Taliban leadership in the province stated how many men were needed, and then tribal leaders designated which villages were responsible for providing how many conscripts. Village elders would then designate which young men were to be conscripted." The witnesses added, "A wealthy family could pay another person to attend instead," but "Obaidullah’s family was not wealthy, so Obaidullah was forced to go to training at the location of the Khost Mechanical School." However, family members "stated that Obaidullah fled from that school and hid from the Taliban after attending only a few days."

Further refuting claims of an association with Al-Qaeda and/or the Taliban, witnesses stated that "no such fighters were present" in the compound, and that, anyway, "given the size, layout and number of occupants of the family compound and adjoining compounds, the presence of Al-Qaeda or Taliban fighters could not have gone unnoticed."

Witnesses also explained the origin of the landmines that played a major part in the allegations against Obaidullah. As Lt. Cmdr. Pandis stated:

[D]uring the 1980s Soviet war a communist official named Ali Jan used the Obaidullah family compound as his residence and used the nearby high school as his garrison headquarters. Obaidullah and most of his family were refugees in Pakistan during this time. [One witness] stated that he continued to live in the area during the Soviet war and stated that he was in the Obaidullah family compound on occasion when it was used by Ali Jan. This witness stated that he personally witnessed landmines and other munitions present in the compound during this time. I showed him a photograph, obtained during our independent defense investigation, which U.S. personnel had previously told us showed the landmines seized on the night Obaidullah was taken into custody. Without describing the photograph to him I asked if he recognized any of the items present. The witness positively identified one of the types of landmines from the photograph as being a type of landmine he recalls seeing in the compound when Ali Jan lived there. This statement is consistent with statements that the landmines were left over from the Soviet war and had been buried by the family when they returned to their home after that war.

In conclusion, backing up Obaidullah's claims that he had made false statements after being abused by U.S. forces, Lt. Cmdr. Pandis stated that he had interviewed U.S. and Afghan witnesses, who had confirmed that "Obaidullah was subjected to sleep deprivation and was physically abused while at FOB Chapman." According to U.S. witnesses, "one service member was punished for having another service member photograph him as he struck Obaidullah in the head with a rifle, and the camera was destroyed by U.S. personnel."

Lt. Cmdr. Pandis added that he had learned from Afghan witnesses, and through other investigative efforts, that "detainees at Bagram during this period in 2002, including Obaidullah, were subjected to extraordinarily coercive measures which cause me to question the reliability of resulting statements."

This is certainly true, and it only sets the seal on a terribly sad story -- involving mistaken inferences, cultural taboos and false confessions extracted through abusive means -- that has unjustly deprived Obaidullah of his freedom for the last ten years, and that ought to be brought to an end through his immediate release to Afghanistan.

Note: On April 24, the D.C. Circuit Court of Appeals heard oral arguments in Obaidullah's case, as reported here by Lawfare.