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Abdul Zahir

01.05.2016 ( Last modified: 24.08.2016 )
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facts

Abdul Zahir, is thought by American Intelligence to have been born in 1972. He was said to have served as a translator for the Taliban in Kabul and had later been chosen to work as a money courier for Abdul Hadi al Iraqi, a commander and accountant for al Qaeda.

He allegedly purchased a photocopy machine to mass produce anti-American leaflets. These leaflets were, according to the U.S. Pentagon, designed to recruit anti-American Afghans to plan and conduct operations against U.S. soldiers, and to spread anti-American propaganda.

Abdul Zahir was said to have been entrusted by Al Qaeda with US$ 50,000 to fund terrorist acts against coalition forces. He reportedly distributed this money to other terrorist cells to support terrorist operations.

In early 2002, Abdul Zahir allegedly travelled to Peshawar, Pakistan and joined Abdul Hadi al Iraqi and others to plan explosives attacks against U.S. forces and civilian foreigners in the Zormat and Paktia provinces in Afghanistan.

On 4 March 2002, Abdul Zahir and others were said to have targeted a passing vehicle carrying foreign journalists through the eastern town of Zormat. They threw a grenade through the window of the vehicle. In the attack, Toronto Star correspondent Kathleen Kenna suffered severe leg injuries and life-threatening internal injuries.

Abdul Zahir was arrested in July 2002. He is currently detained at the U.S. military base at Guantánamo/ Cuba. He was charged by the Pentagon on 20 January 2006.

 

legal procedure

Abdul Zahir was arrested in July 2002 and detained at the U.S. military base at Guantánamo/ Cuba.

On 20 January 2006, he became the 10th detainee to be charged at the first presidentially authorized Military Commission. He was charged with attacking civilians, aiding the enemy and conspiracy for allegedly attacking a civilian vehicle, injuring three journalists, and supporting the Taliban and al Qaeda forces in hostilities against coalition forces in Afghanistan.

Zahir has had a habeas corpus petition before the U.S. District Court in Washington, D.C., since August – in which he denies membership in either the Taliban or al Qaeda and says he has never been an ”enemy alien, a lawful or unlawful belligerent, or a combatant of any kind” by any U.S. civilian or military definition.

On 4 April 2006, the first hearing was held at the Military Commission. Zahir had not been given a copy of the charges against him in a language he could read. Zahir’s second hearing was held on 17 May 2006. It was convened because Zahir’s defence attorney, Lieutenant Colonel Thomas Bogar had filed a motion questioning whether the Presiding Officer Colonel Robert Chester should rescue himself due to an inherent bias. The defence attorney, however, dropped the motion.

After the Supreme Court ruled on the unconstitutionality of the establishment of military commissions, the Congress revived the commissions in 2006. It made new charges against nine of the ten prisoners but charges against Zahir were dismissed without prejudice.

 

Highlights

The military commission proceedings at Guantánamo are the first such war crimes trials conducted by the United States since World War II.

Of the 500 or so captives brought to Guantánamo from Afghanistan since 2002, only a small fraction is facing a military commission.

Human rights activists and military defence lawyers have criticized the commission rules, saying they favour prosecutors, allow evidence obtained through torture and hearsay and permit only limited independent judicial review. Critics also note that the Pentagon has never said it would actually free a defendant if he were acquitted.

Furthermore, the detainees are said to be charged with acts that were not previously crimes or not previously recognized as war crimes.

On 28 March 2006, the Supreme Court heard a challenge to George W. Bush’s power to create military commissions to put Guantanamo prisoners on trial for war crimes (see Salim Ahmed Hamdan in “related cases”). On 29 June 2006, the Supreme Court ruled that the US President exceeded his authority in establishing the military commissions at Guantánamo Bay. The Court also ruled that the commissions violated U.S. military law and the Geneva Conventions.

A controversial new bill was passed by the US Senate and the House of Representatives in late September 2006.

The Military Commissions Act, which is heavily criticised by human rights organisations
– allows terror suspects to be tried by military tribunals rather than civilian courts
– gives defendants a legal right to see evidence and a (limited) right to counsel
– forbids “serious” breaches of the Geneva Conventions, such as torture, in the course of interrogation procedures
– gives the president the authority to “interpret the meaning and application of the Geneva Conventions”
– allows for hearsay evidence in trials of terror suspects.

Furthermore, the new legislation will prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.

The new bill came into force following signature by the President on 17 October 2006.

 

Context

Guantanamo Bay, officially the Joint Task Force Guantanamo (JTF-GTMO), is a detention facility situated on the US naval base in Guantánamo, Cuba. The prison was established in January 2002 as part of the US-led “war on terror”, an international campaign of military operations based on legal and policy reforms introduced by the administration of President George W. Bush following the terrorist attacks on 11 September 2001.

The detention centre’s purpose is to interrogate and prosecute alleged dangerous individuals, suspected of involvement with terrorist groups. Yet, of the 779 total detainees, the majority was found to be non-combatants with no proven affiliation to al-Qaeda, the Taliban or other recognised terrorist organisations.

The legal basis for the establishment of Guantanamo Bay lays on the Joint Resolution 23, adopted by the US Congress in September 2001. It authorised then-President Bush to use “all necessary and appropriate force” against those allegedly responsible for the 9/11 attacks and to prevent future attacks.

Based on this national security justification, the Bush administration sought to exclude Guantanamo detainees from the protection of the US Constitution, arguing that it does not apply since the facility is located outside US territory. The US department of Defense (DOD) further argued that the Geneva Conventions was not applying to Guantanamo Bay, and fighters for non-State terrorist entities, such as al-Qaeda, should be considered as “unlawful enemy combatants” rather than prisoners of war for the purposes of the third Geneva Convention. Thus they were excluded from the protections provided by that treaty. Stripped of basic legal and procedural rights, prisoners are detained indefinitely without trial and charge or tried by military commission.

However, in its 28 June 2004 decision in the Hamdi v. Rumsfeld case, the US Supreme Court upheld the detainees’ right to challenge their “enemy combatant” status by means of a legal action called habeas corpus, which alleges unlawful detention or imprisonment. In response to the Supreme Court ruling, the Bush administration created Combatant Status Review Tribunals (CSRT), specialised military commissions aimed at determining the detainees’ status.

On 29 June 2006, in the Hamdan v. Rumsfeld decision, the Supreme Court found these procedures to be illegal under both federal military justice law and under the Geneva Conventions. The Court held that the Bush administration did not have the requisite authority to establish the CSR tribunals due to a lack of congressional authorisation.

In response to this decision, Congress passed the Military Commissions Act of 2006 (MCA), which provided a federal law basis for the commissions and relieved all US federal courts of the authority to hear a habeas corpus writ filed by any “alien detained as an enemy combatant”. Yet, in Boumediene v. Bush, which was decided on 12 June 2008, the Supreme Court declared the MCA provisions relating to habeas corpus jurisdiction illegal and affirmed the detainees’ right to such actions under the US Constitution.

In addition to the aforementioned legal issues, Guantanamo Bay has been the subject of persistent allegations of torture and mistreatment of detainees since its establishment.

In December 2002, then-Secretary of Defense Donald Rumsfeld authorised the use of so-called “enhanced interrogation techniques”, including stress positions, sleep deprivation, intimidation and humiliation, in US counterterrorism operations. Former Guantanamo commander Major General Geoffrey D. Miller, who was in control of the prison from 2002 to 2004, was allegedly tasked with implementing these techniques. Following an inspection of the facilities in June 2004, the ICRC submitted a confidential report to the US government, stating that these techniques amount to torture. After the report was leaked to the New York Times in November 2004, it was reported that the Bush administration had rejected the ICRC’s findings.

The allegations brought by detainees and human rights organisations were confirmed in 2009, when the US department of Justice (DOJ) released classified memoranda detailing the use of interrogation techniques. The so-called “Torture Memos”, drafted by Deputy Assistant Attorney General John Yoo and signed by Assistant Attorney General Jay S. Bybee in August 2002, assert the legality of such methods. Shortly after taking office in January 2009, President Barack Obama affirmed that the techniques in question constituted torture and prohibited all government agencies from relying on the memos. However, despite widespread condemnation from both US government officials and the international community, as of July 2016 there have been no prosecutions of persons involved in the memos’ creation, nor any of the CIA or DOD personnel that are alleged to have carried out such acts of torture.

President Obama called for the closure of Guantanamo Bay and the transfer or release of all detainees. However, strong opposition from Congress, particularly to the transfer of inmates to prisons on US soil, continuously thwarted the Obama administration’s attempts to terminate operations. Other issues complicating the facility’s closure include the trials of the remaining detainees, particularly those involving evidence that was gathered through the use of torture. At the end of July 2016, Guantanamo Bay remained operational, with 61 prisoners still being detained in the facilities.

 

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