End 22 Years Of Injustice

Holding the Nation Accountable to its Ideals: The Lawyer for One of the Taliban Prisoners Freed from Guantánamo Speaks

Khairullah Khairkhwa

Khairullah Khairkhwa, in a photo from Guantánamo included in the classified military files released by WikiLeaks in 2011.

By Andy Worthington, June 12, 2014

Last week, I wrote an article, "Missing the Point on the Guantánamo Taliban Prisoner Swap and the Release of Bowe Bergdahl," in response to the disgraceful hysteria whipped up by Republican lawmakers and far too much of the mainstream media regarding the Obama administration's decision to release five Taliban prisoners from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, the sole U.S. prisoner of war in Afghanistan, and below I'm cross-posting an op-ed written for Time by Frank Goldsmith, the lawyer for one of the five men released in Qatar.

Those seeking to make political capital out of the prisoner exchange suggested that Sgt. Bergdahl was a deserter, who should have been abandoned -- yet another example of the lack of respect for the law that has gripped America since 9/11. If Bowe Bergdahl is indeed a deserter, then it needs to be established through the military's own procedures, and not taken as a given because of what some of his former colleagues have said.

The irony is not lost on me that, by advocating that Sgt. Bergdahl should have been abandoned, those condemning him have shown the same disregard for formal charges and trials as they have at Guantánamo, where the majority of the 149 men still held have never been charged or tried, and yet are routinely described as "terrorists," even though very few have actually been accused of terrorism -- and 78 of them have been approved for release -- mostly since January 2010 -- by government task forces and review boards.

Those rounding on President Obama for securing the return of Bowe Bergdahl also condemned him for releasing the five Taliban prisoners, even though it makes sense for moves to be made to negotiate with the Taliban, as the U.S. presence in Afghanistan begins to wind down. In fact, as John Bellinger, who served as a legal adviser in the Bush administration, explained just after the prisoner exchange was announced:

[I]t is likely that the U.S. would be required, as a matter of international law, to release them shortly after the end of 2014, when U.S. combat operations cease in Afghanistan. The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.

The president's opportunistic critics also made a huge fuss about him breaking the law by releasing the five men without notifying Congress 30 days before -- as required in the passages dedicated to making it difficult for the president to release prisoners from Guantánamo in the National Defense Authorization Act. However, the administration made it clear that they had no time to jump though hoops, as they feared Bergdahl was close to death -- and in any case, in these kind of matters, dealing with the ongoing management of military affairs, I fail to see why the president and the secretary of defense are required to consult with Congress.

One final point involves the alleged dangerousness of the five men freed, who were lazily, and inaccurately described as "battle-hardened Taliban commanders" by the Washington Post just after the prisoner exchange was announced, even though that is inaccurate. Just two of the men released were military commanders, and as Frank Goldsmith explains in his article, his client, Khairullah Khairkhwa, was the governor of the western province of Herat, and, as he put it, a "political official."

Frank Goldsmith's article succinctly explains how and why so many of the prisoners held at Guantánamo were not "the worst of the worst," as the Bush administration alleged, and also why it is important for lawyers who respect the law to stand up and be counted when great injustices occur -- like the internment of Japanese-American citizens during World War II, and like the current and ongoing internment of Muslims at Guantánamo.

Also see here for Frank and I discussing the prisoner exchange on Democracy Now!

I Helped Free the Taliban from Guantánamo Bay
By Frank Goldsmith, TIme, June 6, 2014

On March 6, 1770, a 34-year-old Boston lawyer, John Adams, agreed to a request that he represent a British captain and eight soldiers who had, the previous night, opened fire on a crowd of protesting civilians, killing five of them. The event became known to history as the Boston Massacre. Adams was told that no other lawyer would take the case. He suffered in the public eye and later said that it had cost him more than half of his law practice. But he was proud of his representation of the hated soldiers, calling it "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

I am no John Adams -- far from it. But I am an American lawyer who believes not only that even the most despised person -- perhaps especially the most despised -- has the right to a vigorous defense. Moreover, from of my experience as a civil rights and criminal defense lawyer, all too often the government’s charges against an accused will not stand up to serious scrutiny.

Such is the case with the men detained at the U.S. Naval Base at Guantánamo Bay, Cuba. Altogether, some 779 Muslim men from 43 different countries, whose ages have ranged from 13 to 90, were brought, hooded and shackled on clandestine flights, to Gitmo (as the base is informally called), to be kept in isolation from family, friends, and -- had the government had its way -- from lawyers. Bush administration leaders claimed that they had been "picked up on the battlefield fighting American forces," were "the worst of the worst," "bomb-makers," "terrorists," "among the most dangerous, best-trained, vicious killers on the face of the earth," "associated with Al-Qaida."

Yet that administration, quietly and without court compulsion, released well over 500 of them, and the Obama administration, which inherited 242 detainees, has released others, according to a report from Seton Hall. Some men have died during their prolonged custody -- and some of those by their own hand. As it turns out from the publicly available facts, the overwhelming majority were not who our government claimed they were. United States forces captured only 5% of them. Others were bought from tribesmen motivated by the large American bounties. Eight-six percent were arrested by the Northern Alliance or Pakistani authorities, having been captured for reasons that are, to say the least, opaque. Some were seized from their homes, places of work, or simply off the street, mostly in Pakistan, not Afghanistan, often based upon anonymous allegations of a connection to Al-Qaida or the Taliban. Most were never on a battlefield and had not been determined to have committed any hostile act at all against the United States or its allies. The government officials and politicians simply misstated the facts.

John Adams knew the importance of focusing on the facts, not on labels. He told the Boston jury this: "Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence." That jury examined the facts, and it acquitted the British captain and six of his eight soldiers, convicting the other two only of manslaughter.

In the cases of the Guantánamo detainees, we lawyers cannot discuss the specific facts publicly, because we were required to trade our free speech for access to the classified evidence necessary to represent our clients. But it is telling that after over a dozen years of detention, the government has managed to charge, try, and convict only a handful -- fewer than ten -- of the 779 men it brought to the base. Five were convicted of minor charges (some that were not even crimes at the time of their detention) and have been released. One of the convictions was overturned on appeal; other appeals remain pending. This is not a record of ringing prosecutorial success. Of the five men I represented, including the Taliban political official just sent to Qatar, none was ever charged with even the most minor crime; they were simply held for years without charges until it pleased the government to send them back. Where is the evidence that they are terrorists? About half of the 149 men still left at Guantánamo have long been determined not to be a threat and have been approved for transfer; the only impediments to their release are political.

In his closing speech to that Boston jury, John Adams quoted these lines from the Italian penologist, Cesare, Marchese di Beccaria:

If, by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal, his blessings and years of transport will be sufficient consolation to me for the contempt of all mankind.

Contesting the basis for our country’s indefinite detention of these men has been costly and challenging, but professionally fulfilling. Certain episodes in our history -- the internment of Japanese-American citizens during World War II comes to mind -- are now regarded in hindsight as tragic aberrations from American values. At such times it is the duty of lawyers to step forward and hold the nation accountable to its ideals.