Kafka in Cuba 3: Afghan Who Wore the Wrong Type of Watch to Be Released from Guantanamo

Kafka in Cuba 3: Afghan who wore the wrong type of watch to be released from Guantanamo

Author : Kate Clark

Published: 11 October 2015 Downloaded: 10 September 2018 Download URL: https://www.afghanistan-analysts.org/kafka-in-cuba-3-afghan-who-wore-the-wrong-type-of-watch-to-be-released-from- guantanamo/?format=pdf

One of the eight Afghans still detained at Guantanamo Bay, Mohammad Kamin, has been cleared for release after a new review board assessed it was no longer necessary to detain him. Kamin, now in his late 30s and from Khost, has been incarcerated for 12 years, a third of his life. The United States believed he was a member of al Qaeda and various other terrorist organisation, although US military documents have revealed that the only evidence for this was his own confession (made at a time when the US military was using torture), a GPS device which he allegedly possessed when detained by Afghan forces in 2003 – and his Casio watch. AAN’s Kate Clark reports that, as with the other Afghans still in Guantanamo, the allegations against Kamin were vast, the evidence meagre.

Picking through the various documents and sources on any detainee at Guantanamo is not easy. For the last 13 years, the US has generally sought to keep everything about its detention

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camp for ‘War on Terror’ prisoners secret. That included locating it purposefully on its naval base on the island of Cuba in the belief that federal law and Geneva Conventions would not apply there and US courts would not be able to ask awkward questions. Information seeped out, however, thanks to the work of human rights activists and constitutional lawyers, journalists and families, and through Freedom of Information Requests, litigation and leaks. The US courts eventually also ruled that federal law and the minimum regulation in all conflicts, common article 3 of the Geneva Conventions, (1) did apply.

For Kamin, however, there is still very little publically available information beyond the US accusations against him. Despite that, what is available is enough to assess the case against him and draw worrying conclusions about the flimsiness of US evidence. It shows how very easy it was in 2003 to end up in Guantanamo – and to be left lingering there.

For Kamin and the other detainees, there are two main sources of information about the US cases against them:

(a) Summaries of the military boards which met in Guatnanamo to assess whether detainees were enemy combatants – Combatant Review Boards – (Kamin’s was held in 2004) and whether they were a threat to the US or its allies – Administrative Review Boards – (for Kamin, we have documents related to Administrative Review Boards held in 2005, 2006 and 2007). The US government wanted to keep all these hearings secret and it took a two year battle by the Associated Press using multiple FOIA requests and three lawsuits, as well as some determined reporting by the media in general, to get the documents made public (finally, in full, in 2006).

The Combatant Review and Administrative Review Boards were not like criminal trials. Detainees had no legal counsel and could not see evidence against them or often know who had made claims; calling witnesses was exceptionally difficult. Answering government assertions – you are a member of al-Qaeda, you launched rockets – was also hard given how unspecific the allegations usually were. Few detainees were released through these reviews.

However, one benefit for the researcher was that, when a detainee chose to attend, we could learn from the transcripts how he answered US allegations. Kamin, however, boycotted all such hearings which meant for years we did not get to ‘hear’ his voice or his side of the story.

(b) Joint Task Force Guantanamo Detainee Assessments. These secret documents made for internal use bring together the allegations against detainees, why they were sent to Guantanamo, what evidence it is based on, their supposed terrorist associations, some biographical background, health status and recommendations as to keep detaining or release them. They were ‘Wikileaked’ in 2010. Kamin’s dates from 2005.

(All US military documents referred to in this piece and not hyperlinked can be found at this New York Times website.)

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Biography and capture

Kamin, according to his Wikileaked Joint Task Force Guantanamo Detainee Assessment, was born in Plasai Inzarkai village, in Khost, in 1978 and as a child, fled with his family to Pakistan after the Soviet invasion. He was an imam.

The Assessment says he was detained by Afghan forces on 3 May 2003 at a checkpoint in downtown Khost after returning from Miram Shah and that he reportedly had a handheld GPS device which “had stored grid points of key target locations along the Afghan/Pakistan border.” An analyst noted in the document: “It is rare for an Afghan or a lower level individual to possess a GPS device.” Kamin is reported to have said he was transporting the device for someone else, an Abdul Manan. The Assessment notes: “No further capture information is available.”

Kamin was held in US custody in Khost for a year, then in Bagram for a few months and was finally sent to Guantanamo on 19 September 2004, 16 months after his original arrest. The Center for Constitutional Rights, two of whose lawyers represent Kamin, think he was one of a batch of detainees apparently sent to Cuba “in order to be charged and serve as success stories for the troubled military commission process” (more on which below).

The case against him – and the evidence supporting it

Kamin’s Joint Task Force Guantanamo Detainee Assessment reads like a who’s who of terrorist organisations. One wonders if there was anyone the US believed he had not worked with.

It is assessed detainee is a key member of the Anti-Coalition Militia (ACM) and/or the Al-Qaida Network. Detainee has participated in weapons trafficking, explosives training, operational planning, and attacks against US and Coalition forces in support of the Al-Qaida network. Detainee is affiliated with Al-Qaida, the North African Extremist Network (NAEN), Taliban, and Jayshe-Mohammed (JEM) terrorist Organizations and leaders; further more detainee has admitted ties to the Harakat ul-Mujahidin (HUM).

Reading on through the detail of his Assessment and the other documents, however, it becomes clear that the evidence of his involvement in terrorism apparently consists only of that GPS device, his own statements made under interrogation, and the make of his watch.

The US military acknowledged (to itself, in its secret Assessment of Kamin) that it had extremely little information about his initial detention. He may well have held a GPS device, but the fact that US forces themselves did not capture him with it raises some doubts. At this time, US bounties were available to people handing over someone who was or could be passed off as al- Qaeda or Taleban. What the Afghan forces (2) reported to the US military may not necessarily have been reliable.

Moreover, all the detail of the allegations against him comes solely from his own statements

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made under interrogation. It is this which places him as having been working with al Qaeda, JEM, HUM, NAEN and the Taleban, as buying and selling weapons to and from “ACM personalities,” learning to make IEDs, looking over maps with al-Qaeda leader, Abu Laith al- Libi, receiving payment for carrying out attacks and so on. In the Assessments of other detainees, other types of evidence are noted (for example, walk-in sources, statements by other detainees, statements by US military personnel, as well as physical evidence such as possession of weapons). Kamin’s is noticeable for not mentioning any sourcing but his own statements.

For example, his Assessment says:

Detainee stated he sold four mines to an Allam Shah and Abdul Malek, who intended to target the Afghanistan government. (Analyst Notes: Allam Shah could also be Qari Allam Shah who was recruited by JEM leader Abdul Manan.)

Detainee admitted to receiving payment on numerous occasions from the JEM for carrying out attacks against US or coalition forces, or Afghans that are assisting US or coalition forces.

The detainee has admitted ties to three organizations operating from Miramshah, PK, with cells in Khowst, AF, to include Al-Qaida, Harakat ul-Ansar aka Harakatul- Mujahidin (HUM) and Jahish Mohammed Masood Asgher. (HUM is defined as a Tier 1 target. Tier 1 targets are defined as terrorist groups, especially those with state support, that have demonstrated the intention and the capability to attack US persons or interests. No information is available on the Jahish Mohammed Masood Asgher organization detainee has reported on. This organization is believed to be referring to JEM.) (all as original)

We do not know when the interrogations that produced these allegations took place or what exactly he said to his interrogators. Kamin’s defence counsel for a military trial (which never took place) did say in 2008 that two Afghans “on the US payroll” had carried out the initial interrogation of Kamin and may have “softened him up.” (3)

We also know that, at this time, the US military was using torture at its provincial bases, including in Khost, and at Bagram and Guantanamo. Although there is also no information as to whether Kamin himself was tortured or not, the general record is clear – detailed by human rights groups (here and here and official US reports ( Church and Senate reports). The military used sleep deprivation, stress positions, beatings, sexual taunts and deafening music to try to break detainees. In December 2002, two detainees were killed in Bagram: US military doctors ruled that both were homicides. (4) At the time, the International Committee of the Red Cross was also still requesting, and being refused, entry to US military temporary detention centres like the one in Khost. (5)

Our knowledge of the way interrogations were conducted in those early years and the lack of any corroborating evidence for the detail of the allegations against Kamin make them look dubious. At best, they look flimsy and vague, at worst, fantastical.

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Unfortunately for Kamin, he was also in possession of the wrong sort of watch. As the US military said (in his third Administrative Review Board in 2007):

The detainee's pocket litter included a Casio watch model F_91W. The Casio F-91W watch has been used in bombings that have been linked to al Qaida and radical Islamic terrorist improvised explosive devices.

It is also a “global bestseller” owned by millions.

More allegations, even less credible

Curiously, the detail of the allegations against Kamin grew while he was in Guantanamo. By 2006, the summary of his Administrative Review Board hearing (which he did not attend) has all sorts of new details about him which are so ludicrous, one wonders if he was making them up deliberately in a ‘weapons of the weak’ form of resistance. For example, the summary says:

“The individual met with the Taliban Supreme Leader after the war against the Soviets…”

It is difficult to imagine how, where and indeed why a boy from Khost (aged between 11 and 16) would have met Mullah Omar, who after the Soviet withdrawal was a village mullah in Sangisar, Kandahar.

Kamin also apparently told his interrogators that, in about March 2003, he and four others bought “eight BM-12 Russian made rockets” for five dollars each (unbelievably cheap) and then:

“… stated that he and three individuals wore women's burqas to smuggle the rockets through a checkpoint before traveling to Landar Village.”

Bearing in mind these rockets are about a metre long (see a picture here), I have difficulty picturing this: whether the men were walking, or even sitting in a vehicle, how would wearing a burka have helped?

From being in the pouring rain to the gutter

In all his documents, it is always noted that Kamin is a “compliant” prisoner. Yet he has adamantly refused to engage with any hearing during his time in detention. As mentioned earlier, this meant that for years we did not get to ‘hear’ his voice at all. This changed in 2008 – albeit slightly and not out of choice. On 12 March of that year, Kamim had finally been charged for a military trial (6) in a court set up under the 2006 Military Commissions Act where judges, prosecutors and defence lawyers are all US military personnel and basic legal procedures are bypassed. There is no right to independent counsel, both hearsay and coerced testimony are allowed, defendants and their attorneys frequently cannot see evidence which the state and court relies on, and so on. Moreover, rules were unclear so there was, as one observer,

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described it, “a making-it-up-as-we-go feel to these proceedings which is inevitable for a system of trials for which the Congress, courts and executive keep changing the rules.” (More detail here)

Kamin again tried to boycott the pre-trial hearing for his military trial. However, he was ‘forcibly extracted’ from his cell on 22 May 2008 and brought to the court. An observer from the American Union of Civil Liberties, Jamil Dakwar, described him with minor bruises across his face and neck, cuffed and in shackles, and the judge saying Kamin had tried to spit and bite one of the guards. Here though, we finally got to hear something of Kamin’s voice after five years in detention, as Dakwar reported:

Throughout today's hearing... Kamin asserted in his native language, Pashto, that he is innocent, that he has no links to al Qaeda, and that all the allegations against him are false. Kamin said at his hearing that before his arrival in Guantánamo he was held in Bagram, the notorious U.S. military air base in Afghanistan. He also said, surprisingly, that he came to Guantánamo of his own free will. He explained that he made this decision after he was told that people at Guantánamo would help him. Soon after Kamin's arrival at Guantánamo, he realized that his situation had gone from bad to worse. He told his military lawyer that it was like moving from under the pouring rain to being placed under the gutter.

‘Supporting’ terrorism?

The charges for the military trial which were brought by the US state against Kamin were that:

… between January and May of 2003, Mohammed Kamin provided material support to terrorism by joining the terrorist organization al Qaeda and receiving training at al Qaeda training camps on making remote detonators for improvised explosive devices (IEDs), in modifying military ammunition, and on use of small arms for attacks against American and Coalition forces.

The ‘material support’ also allegedly comprised spying, placing IEDs and launching missiles “towards Khowst” and transporting weapons for al Qaeda and the Taleban to use against US forces.

The charge of ‘providing material support to terrorism’ as found in the Military Commissions Act of 2006 looks, in general, like an attempt to get round the fact that the US had no evidence that detainees like Kamin had actually committed a specific criminal act such as killing a particular person, or carrying out a particular attack. The charge sheet, noticeably, did not accuse him of harming civilians or American or allied military forces. The charge of ‘providing material support to terrorism’ would later be thrown out as non-indictable in a 2012 ruling by the appeals court in the case of Salim Hamdan, Osama bin Laden’s driver:

When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime… and still does not... Because

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we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime… Hamdan’s conviction for material support for terrorism cannot stand.

At the time of the Hamdan ruling in 2012, however, the charges against Kamin had already, long ago been dropped – on 11 December 2009. Pentagon officials said they would re-file them, but this never happened. It is not know why the charges were dropped, or why they were not re- filed. In January 2010, in information only subsequently obtained under a Freedom of Information Act request in June 2013, the Guantanamo Review Task Force, set up by President Obama to assess all the remaining detainees, decided Kamin should be held indefinitely and without trial. No explanation was given.

… and finally, release

Eventually, in 2015, another review board examined Kamin’s case. Known as the Periodic Review Board, it was (7) established in 2011 and started work in Guantanamo in 2013. Kamin is the first Afghan to go before it. On 28 September 2015, the Board ruled that detaining Kamin was no longer “necessary to protect against a continuing significant threat to the security of the United States”:

In making this determination, the Board appreciated the detainee's high degree of candor regarding his past activities and acknowledgement of mistakes that led to his detention. The Board noted that the detainee has been one of the more compliant detainees at Guantanamo and there is an absence of evidence that the detainee has expressed extremist views while in the camps. The Board also considered the presence of family and tribal support available to the detainee upon transfer, the detainee’s strong desire to return to his family, the absence of information that the detainee harbors anti-American sentiments, and found him credible in his desire to pursue non-extremist goals.

Mohammed Kamin is a man who, in the words of one of his defence attorneys, "almost no one in the western world has ever heard of." He has spent more than a third of his life in US incarceration and, according to the statement of another lawyer made to his Periodic Review Board in August, desires nothing more than to “return to life with his extended family, his elderly father, and wife and young son in Afghanistan.” He hopes, she said, to become a grocer.

It was Kamin’s bad luck that he was handed over to the Americans in 2003. This was a dangerous time when the US was still trying to hoover up al Qaeda and Taleban ‘remnants’, but had very hazy ideas about what constituted the enemy. It was also handing out bounties for detainees. Under-age boys, old men, even a Shia from neighbouring Paktia – all ended up at Guantanamo. If Kamin he had been captured a few years later, he would have been sent to Bagram or might even have got away with a guarantee from elders for good behaviour. Instead, he has spent 13 years of imprisonment without trial, based on weak evidence and possible abuse, suffering from the secrecy of the detention regime and – what look to an outsider – to have been a series of arbitrary decisions: to detain, to send him to Cuba, to keep him in custody

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and now to release him. His is not a unique story, however. The experiences of the other seven Afghans still held at Guantanamo are equally Kafkaesque.

Research for this dispatch is based on a forthcoming AAN paper about the Afghans left in Guantanamo.

(1) Relevant parts of Common Article 3 :

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(2) In Khost, the ‘army’ at that time was made up of former PDPA soldiers. The 25th Division escaped disarmament, demobilisation and reintegration (DDR) because of its strong ties to US forces. It would go on to form the Khost Protection Force, one of the ad hoc militias known as ‘Coalition Forces’ which fought with the US (usually Special Operations Forces or CIA) and answered to them, rather than to a governmental Afghan chain of command. The Khost Guard Force still exists. The New York Times has reported it has now been transferred from the CIA to the NDS.

(3) David Danzig, a human rights advocate, writing in The Huffington Post, said:

Captain Clay West, who acts as co-defense counsel, raised yet another thorny issue: two Afghan men who initially interrogated Kamin can not be found by the U.S. government for questioning. West suggested that these men, who were on the U.S. payroll, may have "softened up" Kamin and they ought to be questioned by investigators to determine what role any abuse may have played in subsequent statements.

(4) Dilawar, aged 22, also from Khost, died on 10 December 2002. His death certificate gave “blunt force injuries to lower extremities complicating coronary artery disease” as the cause of death. Mullah Habibullah, aged about 30 years and from Uruzgan, died on 3 December 2002 from a “pulmonary embolism due to blunt force injury to the legs,” according to a military pathologist who ruled the death had been a homicide. Human Rights Watch (based on original reporting by The New York Times)

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(5) In research for a 2003 BBC radio report, this author also spoke to former detainees in Paktia province (Khost’s neighbour) and to a former interpreter who had worked in various bases round the country including Khost. They gave credible testimony of the US military using stress positions, sleep deprivation, food deprivation, beatings, sexual taunts (by female interrogators and threats that detainee’s wives would be forced into prostitution) and deafening music played for as long as eleven hours at a stretch (the interpreter had been tasked with buying a loudspeaker in the Khost bazaar for this purpose).

(6) This was the US state’s second attempt to set up military commissions for Guantanamo detainees. The first was ruled unconstitutional by the Supreme Court in 2007 (Hamdan v Rumsfeld) which said the law lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice [the US military’s legal code] and the four Geneva Conventions signed in 1949.”

(7) The Periodic Review Board procedure was created in March 2011. All detainees not cleared for release or due to stand trial should be periodically reviewed by a panel made up of representatives from the Departments of State, Defence, Justice and Homeland Security and the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

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