Abdul Zahir (Guantanamo Bay detainee 753)
|Born||1972 (age 44–45)|
|Charge(s)||War crimes charges against Mr. Zahir have been dismissed|
|Status||"temporarily" transferred to Oman|
Abdul Zahir (عبدالظاهر) is a citizen of Afghanistan currently held in extrajudicial detention in the United States' Guantanamo Bay detention camps, in Cuba. He was the tenth captive, and the first Afghan, to face charges before the first, Presidentially authorized Guantanamo military commissions. After the Supreme Court ruled the President lacked the constitutional authority to set up military commissions, the United States Congress passed the Military Commissions Act of 2006, he was not charged under that system.
Zahir was approved for transfer on July 11, 2016. On January 17, 2017, four days before the inauguration of Donald Trump, ten men were transferred from Guantanamo, while American and Oman officials declined to identify the men Abdul Zahir's lawyer told the Associated Press that he had been released.
Zahir was charged with conspiracy, aiding the enemy and attacking civilians in connection with the grenade attack that wounded Canadian reporter Kathleen Kenna. Kenna wrote an op-ed about her feelings about Abdul Zahir's trial on December 27, 2009. She wrote that she and her companions weren't interested in retribution. She wrote that she hopes Abdul Zahir has a truly fair trial. She wrote that she and her companions couldn't identify their attackers. According to historian Andy Worthington, author of The Guantanamo Files, Kenna's op-ed should have shamed the US Government.
- After living in a war zone for months in Afghanistan, and closely following the war’s progress since then, we have strong convictions that any prisoner-of-war should be treated with dignity, and afforded all the rights guaranteed by the Geneva Conventions and international human rights laws. It’s what we would demand for any Canadian, American or other citizen — whether combatant or aid worker — captured and held in a country of war. It’s what we want for Zahir and all the Guantánamo detainees.
Official status reviews
Originally the Bush Presidency asserted that captives apprehended in the "war on terror" were not covered by the Geneva Conventions, and could be held indefinitely, without charge, and without an open and transparent review of the justifications for their detention. In 2004 the United States Supreme Court ruled, in Rasul v. Bush, that Guantanamo captives were entitled to being informed of the allegations justifying their detention, and were entitled to try to refute them.
Office for the Administrative Review of Detained Enemy Combatants
Following the Supreme Court's ruling the Department of Defense set up the Office for the Administrative Review of Detained Enemy Combatants.
Scholars at the Brookings Institution, led by Benjamin Wittes, listed the captives still held in Guantanamo in December 2008, according to whether their detention was justified by certain common allegations:
- Abdul Zahir was listed as one of the captives who had faced charges before a military commission.
- Abdul Zahir was listed as one of the captives who had been charged before a Guantanamo military commission, and had subsequently had the charges dropped.
- Abdul Zahir was listed as one of the captives who "The military alleges ... are members of Al Qaeda."
- Abdul Zahir was listed as one of the captives who "The military alleges that the following detainees stayed in Al Qaeda, Taliban or other guest- or safehouses."
- Abdul Zahir was listed as one of the captives who was an "al Qaeda operative".
- Abdul Zahir was listed as one of the captives "who have been charged before military commissions and are alleged Al Qaeda operatives."
- Abdul Zahir was listed as one of the captives who "deny affiliation with Al Qaeda or the Taliban yet admit facts that, under the broad authority the laws of war give armed parties to detain the enemy, offer the government ample legal justification for its detention decisions."
- Abdul Zahir was listed as one of the captives who admitted "serving Al Qaeda or the Taliban in some non-military capacity."
Joint Review Task Force
When he assumed office in January 2009 President Barack Obama made a number of promises about the future of Guantanamo. He promised the use of torture would cease at the camp. He promised to institute a new review system. That new review system was composed of officials from six departments, where the OARDEC reviews were conducted entirely by the Department of Defense. When it reported back, a year later, the Joint Review Task Force classified some individuals as too dangerous to be transferred from Guantanamo, even though there was no evidence to justify laying charges against them. On April 9, 2013, that document was made public after a Freedom of Information Act request. Abdul Zahir was one of the 71 individuals deemed too innocent to charge, but too dangerous to release. Although Obama promised that those deemed too innocent to charge, but too dangerous to release would start to receive reviews from a Periodic Review Board less than a quarter of men have received a review.
Formerly secret Joint Task Force Guantanamo assessment
On April 25, 2011, whistleblower organization WikiLeaks published formerly secret assessments drafted by Joint Task Force Guantanamo analysts. Joint Task Force Guantanamo drafted a 12 page assessment on November 19, 2008. Zahir's assessment recommended his continued detention under DoD control and was signed by camp commandant David M Thomas Jr..
Charged before a military commission
Zahir was charged with conspiracy, aiding the enemy and attacking civilians in connection with the grenade attack that wounded Canadian reporter Kathleen Kenna. Kenna wrote an op-ed about her feelings about Abdul Zahir's trial on December 27, 2009. She wrote that she and her companions weren't interested in retribution. She wrote that she hopes Abdul Zahir has a truly fair trial. She wrote that she and her companions couldn't identify their attackers.
The first hearing in Zaher's case was held on April 5, 2006. Although the rules for Military Commissions required the suspect to be given a copy of the charges against them in a language they could read, Zahir had not been given a translation. Officials could not explain why the hearing had been convened without hiring a Farsi translator, so Zahir could understand what was going on.
According to Jamil Dakwar, the director of the ACLU's Human Rights Program, an observer at Zahir's April 5 hearing, the military commission system "...is a deficient system rife with legal and procedural problems..." Dakwar noted that Zahir's hearing was the first when the Presiding Officer wore a black robe, like a civilian judge. He noted that the charge "conspiracy to commit war crimes" was not a crime recognized under any international law.
Zahir's second hearing was held on May 17, 2006. It was convened because Zahir sole defense attorney, Lieutenant Colonel Thomas Bogar, had filed a motion questioning whether the Presiding Officer Colonel Robert Chester should recuse himself due to inherent bias. Bogar dropped his motion, telling reporters later he was satisfied with the answers he received from Chester and the jury members.
Transfer to Oman
On January 17, 2017, Oman accepted the transfer of ten men from Guantanamo. The names of the transferred men was withheld, by both American and Oman authorities. Oman officials said the men had been granted "temporary residence". Vermont lawyer David Sleigh, Zahir's pro-bono habeas attorney, told the Associated Press he was one of the transferred men.
- OARDEC. "List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006" (PDF). United States Department of Defense. Archived (PDF) from the original on 2007-09-30. Retrieved 2006-05-15. Works related to List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006 at Wikisource
- Priti Patel; Avi Cover (2006-10-30). "There are No Rules Here: A Visitor's Guide to Guantanamo and the Military Commissions". samarmagazine.org. Archived from the original on 2012-09-27.
So we now know that Binyam Muhammad has a wonderful sense of humor and a flare for out-of-context idioms; Abdul Zahir, the only Afghan charged before the commissions, is quiet and self-contained; Omar Khadr, a nineteen-year-old who has spent his teenage years at Guantanamo, has the freshly scrubbed look of teenage boy anywhere in the world.
- Jaime Jansen (2006-01-20). "US charges tenth Guantanamo detainee". The Jurist. Archived from the original on 2012-08-12.
Abdul Zahir has been formally charged with conspiracy, aiding the enemy and attacking civilians, and is accused of working as a translator and money-man for former Taliban rulers in Afghanistan and with al Qaeda. The accusations also implicate Zahir in a 2002 grenade attack that injured three journalists.
- "Alleged Qaeda Member Faces Tribunal". CBS News. 2012-04-04. Archived from the original on 2012-08-12.
Abdul Zahir sat down at the defense table, wearing no handcuffs and appearing relaxed, inside the tribunal building perched on a hill on this U.S. military base. His U.S. military defense counsel almost immediately began asking the judge, Marine Col. Robert S. Chester, what laws he would follow in presiding over the trial. The Guantanamo Bay trials are the first military tribunals held by the U.S. military since the World War II era.
- "Vermont lawyer says Guantanamo client cleared for release". washingtontimes.com.
- Greg Myre (2017-01-16). "10 Guantanamo Prisoners Freed In Oman; 45 Detainees Remain". National Public Radio. Retrieved 2017-01-17.
The freed prisoners were not identified by name or nationality, though the Oman News Agency, citing the country's Foreign Ministry, reported that the 10 had arrived in the country on Monday for "temporary residence."
- Carol Rosenberg (2017-01-16). "U.S. sends 10 Guantánamo captives to Oman". Miami Herald. Archived from the original on 2017-01-17.
A Pentagon official who spoke on condition of anonymity confirmed that the transfer had taken place, downsizing the detainee population to 45. Neither Oman nor the official provided the identities of the 10 men who were sent there.
- "Vermont lawyer says client out of Guantanamo Bay prison". St. Johnbury, Vermont: Washington Times. 2017-01-17. Retrieved 2017-01-17.
Attorney David Sleigh said his client Abdul Zahir was transferred on Tuesday.
- "Measurements of Heights and Weights of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba (ordered and consolidated version)" (PDF). humanrights.ucdavis.edu, from DoD data. Archived from the original (PDF) on 2009-12-21.
- Margot Williams (2008-11-03). "Guantanamo Docket: Abdul Zahir". New York Times. Archived from the original on 2012-08-12. Retrieved 2012-08-11.
- Andy Worthington (2012-07-07). "US in Talks to Return the 17 Afghan Prisoners in Guantánamo". Archived from the original on 2012-08-11.
In December 2009, Kathleen Kenna, who was seriously injured in the attack that was allegedly undertaken by Abdul Zahir, wrote an op-ed for the Toronto Star, which should have shamed the US authorities.
- "Tenth Gitmo inmate charged". United Press International. 2006-01-20. Archived from the original on 2012-08-12. Retrieved 2012-08-12.
The legality of the military commission system and whether it meets the constitutional requirements of due process is to be the subject of a case to be heard before the Supreme Court in March. Zahir's trial date has not yet been set. Because of legal challenges, there has yet to be a single military commission completed.
- Kathleen Kenna (2009-12-27). "The justice I want for Captive 783 [sic]". Toronto Star. Archived from the original on 2009-12-27.
- "U.S. military reviews 'enemy combatant' use". USA Today. 2007-10-11. Archived from the original on 2012-08-11.
Critics called it an overdue acknowledgment that the so-called Combatant Status Review Tribunals are unfairly geared toward labeling detainees the enemy, even when they pose little danger. Simply redoing the tribunals won't fix the problem, they said, because the system still allows coerced evidence and denies detainees legal representation.
- Guantánamo Prisoners Getting Their Day, but Hardly in Court, New York Times, November 11, 2004 - mirror
- Inside the Guantánamo Bay hearings: Barbarian "Justice" dispensed by KGB-style "military tribunals", Financial Times, December 11, 2004
- "Q&A: What next for Guantanamo prisoners?". BBC News. 2002-01-21. Archived from the original on 23 November 2008. Retrieved 2008-11-24.
- Benjamin Wittes, Zaathira Wyne (2008-12-16). "The Current Detainee Population of Guantánamo: An Empirical Study" (PDF). The Brookings Institution. Retrieved 2010-02-16. mirror
- Peter Finn (January 22, 2010). "Justice task force recommends about 50 Guantanamo detainees be held indefinitely". Washington Post. Archived from the original on 2015-05-19. Retrieved July 21, 2010.
- Peter Finn (May 29, 2010). "Most Guantanamo detainees low-level fighters, task force report says". Washington Post. Archived from the original on 2015-05-19. Retrieved July 21, 2010.
- Andy Worthington (June 11, 2010). "Does Obama Really Know or Care About Who Is at Guantánamo?". Archived from the original on 2010-06-16. Retrieved July 21, 2010.
- "71 Guantanamo Detainees Determined Eligible to Receive a Periodic Review Board as of April 19, 2013". Joint Review Task Force. 2013-04-09. Archived from the original on 2015-05-19. Retrieved 2015-05-18.
- Christopher Hope; Robert Winnett; Holly Watt; Heidi Blake (2011-04-27). "WikiLeaks: Guantanamo Bay terrorist secrets revealed -- Guantanamo Bay has been used to incarcerate dozens of terrorists who have admitted plotting terrifying attacks against the West – while imprisoning more than 150 totally innocent people, top-secret files disclose". The Daily Telegraph. Archived from the original on 2012-07-13. Retrieved 2012-07-13.
The Daily Telegraph, along with other newspapers including The Washington Post, today exposes America’s own analysis of almost ten years of controversial interrogations on the world’s most dangerous terrorists. This newspaper has been shown thousands of pages of top-secret files obtained by the WikiLeaks website.
- "WikiLeaks: The Guantánamo files database". The Telegraph (UK). 2011-04-27. Archived from the original on 2012-08-11.
- "Guantanamo Bay detainee file on Abdul Al Zaher, US9AF-000753DP, passed to the Telegraph by Wikileaks". Telegraph (UK). 2011-04-27. Archived from the original on 2012-08-11.
Detainee Summary: If released without rehabilitation, close supervision, and means to successfully reintegrate into his society as a law-abiding citizen, it is assessed CLASSIFIED(S) detainee would immediately seek out prior associates and reengage in hostilities and extremist support activities at home and abroad...
- David M Thomas Jr. (2008-11-19). "Recommendation for Continued Detention Under DoD Control (CD) for Guantanamo Detainee, ISN US9AF000753DP" (PDF). Joint Task Force Guantanamo. Retrieved 2012-08-11. Media related to File:ISN 00753, Abdul Sahir's Guantanamo detainee assessment.pdf at Wikimedia Commons
- US brings charges against 10th Guantanamo prisoner, Reuters, January 20, 2006
- Carol Rosenberg (2006-01-21). "10th Guantanamo captive facing war crimes charges". Free Lance Star. p. 10. Retrieved 2013-06-16.
His U.S. defense lawyer, Robert A. Gensburg of St. Johnsbury, Vt., said he had met Zahir at Guantanamo but was not authorized to talk about his client or the case. Gensburg said he first learned of the charges from The Miami Herald.
- "Court rules questioned at Gitmo hearing". China Daily. 2006-04-05. Archived from the original on 2012-08-11.
But, when pressed by the defense attorney, Army Lt. Col. Thomas Bogar, the judge would not specify which set of laws would guide the trial.
- Joshua Pantesco (April 2006). "Guantanamo military judge unsure of what laws govern detainee trial". The Jurist. Archived from the original on 2012-08-12.
When asked by Zahir's military counsel, judge Col. Robert Chester said "Obviously military law is going to have some application. I suppose we will look at military criminal law and federal criminal laws and procedures." Asked to be more specific, he later shot back "I'm not going to speculate as to what is or what is not controlling."
- Jamil Dakwar (2012-04-05). ""Judging" Abdul Zahir". ACLU. Archived from the original on 2012-08-12. Retrieved 2012-08-11.
- Jamil Dakwar (2006-05-16). "The Mouth That Prohibits Is the Mouth That Permits". ACLU. Archived from the original on 2012-08-11. Retrieved 2012-08-11.
Tomorrow will be Mr. Zahir's second appearance before the military commission. Last month, his military defense counsel started a voir dire inquiry — a process which allows the defense to question the impartiality of the presiding officer.
- Jamil Dakwar (2006-05-20). "The Beginning of the End or the End of the Beginning?". ACLU. Archived from the original on 2012-08-11. Retrieved 2012-08-11.
In camp 4, Mr. Abdul Zahir enjoyed less restrictive conditions and shared a communal facility with other detainees from Afghanistan. Unlike some of the detainees in camp 5, Mr. Abdul Zahir has not threatened to boycott the proceedings and, according to his lawyer, he is still keen to cooperate and prove his innocence before the commission. His lawyer is therefore concerned that the worsening conditions might affect the relationship with his client and ultimately the ability to prepare a proper defense before the military commission.
- Afghan fantasist to face trial at Guantánamo Andy Worthington
- Pentagon announces war-crimes charges against a 10th captive at Guantánamo -- an Afghan citizen, Miami Herald, January 20, 2006
- Testimony by Abdul Zahir as witness for detainee Islam (p. 10) Pentagon Reprocessed Combatant Status Review Tribunal
- Who Are the Remaining Prisoners in Guantánamo? Part Eight: Captured in Afghanistan (2002-07) Andy Worthington