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Haji Muhammad Hasan, the father of Guantanamo Bay inmate Abdullah Mujahid, in his home in Gardez, Afghanistan.
Haji Muhammad Hasan, the father of Guantanamo Bay inmate Abdullah Mujahid, in his home in Gardez, Afghanistan. (Declan Walsh for the Boston Globe)

Detainees not given access to witnesses

But in one case, 3 quickly found

GARDEZ, Afghanistan -- The US government routinely failed to give detainees at Guantanamo Bay access to witnesses who might have helped them prove their assertions of innocence, saying it could not locate the vast majority of the witnesses the terror suspects requested at special military hearings.

But within a three-day span, a Globe reporter was able to locate three of those witnesses in the case of one detainee. The Globe found two of them in Afghanistan, and located a third in Washington, D.C., where he is teaching at the National Defense University.

In 2004, after a Supreme Court ruling, the US military was forced to give hearings to more than 500 prisoners being held without charge at the US detention facility in Cuba. At the time, the military pledged to try to locate defense witnesses to give testimony for those hearings, but later routinely reported that they could not be found.

A Globe review of the transcripts of the hearings, which were released to the public in March, identified 34 detainees who convinced tribunal officials that their overseas witnesses would provide relevant testimony.

But in all 34 cases, detainees were told at their hearings that their witnesses could not be found. Nearly all of those 64 approved witnesses were deemed ``unavailable" because the governments of the country where the witnesses lived did not respond to a State Department request for help in locating them.

Military investigators and State Department officials did not even contact witnesses who were well known to US authorities.

In one case, the State Department said that it could not locate Ismail Khan , the well-known minister of energy in Afghan president Hamid Karzai's cabinet, who meets frequently with American diplomats.

In another case, tribunal officials said they could not contact a prisoner in US custody in Bagram, Afghanistan, because the US officials holding him failed to respond to their inquiries. The tribunal records also show that the time period allowed by the tribunals to find the witnesses was often brief. In some cases, tribunal officials declared witnesses unavailable after two weeks.

In the vast majority of cases, detainees had to rely on the jailhouse testimony of fellow prisoners at Guantanamo, whose credibility is deeply in question, or on letters from family members.

Defense lawyers say the absence of witnesses at the hearings made it harder for any innocent detainee to prove that he was the victim of a mistake. Out of nearly 380 detainees who participated in the process, only 38 managed to win their release.

The status of the Guantanamo detainees received new attention following the suicides of three prisoners June 10, after months of hunger strikes by scores of detainees to protest the US military's refusal to grant them hearings under usual criminal procedures. The Pentagon considers the detainees to be terrorists or Taliban fighters captured in Afghanistan and elsewhere after the Sept. 11 attacks.

The military did not initially intend to allow detainees to challenge their status through hearings or to be able to call witnesses. But in June 2004, the Supreme Court ruled that prisoners at Guantanamo had to be given a chance to prove their innocence, either in US federal court or in special military hearings.

To satisfy the court ruling -- and to keep the cases out of federal court -- the military quickly set up ``Combatant Status Review Tribunals" in which detainees could challenge their status as ``enemy combatants" and call witnesses who were ``reasonably available."

The tribunals, which began in the fall of 2004 and concluded in early 2005, represented the only opportunity for the vast majority of detainees to call witnesses to try to prove contentions of mistaken identity or misinformation. (Only 10 detainees have been granted formal trials, which provide a second opportunity for a defense.)

Detainees' lawyers were barred from participating in the hearings. But Gordon England, then the secretary of the Navy, who oversaw the creation of the tribunals, pledged to reporters at the time that the US government would make good-faith efforts to find the witnesses, and that he would ask US embassies to help locate witnesses overseas.

``We will ask them to, and I expect people will do their jobs," England said, explaining that witnesses would either testify in person or be asked to submit written statements.

The State Department's role was merely ``to pass information to host governments," according to department spokesman Tom Casey. ``The US government did not physically go out and try to locate these witnesses," said a State Department official who asked not to be identified because he was not authorized to speak to the press. ``We relied very heavily on the governments to run down these witnesses. Some governments were not as cooperative."

Another State Department official, who also asked not to be identified, said the US government would have paid for some witnesses to be transported to Cuba to testify, but that detainees failed to provide enough details to locate them.

The two State Department officials also said that some witnesses were found but that they opted to provide written statements instead of testifying in person. Yet, thousands of pages of transcript hearings reveal fewer than 10 such witnesses, most of them prisoners in US custody.

Pentagon spokesman Lieutenant Commander Chito Peppler said the Defense Department did not keep track of how many witnesses were located. He acknowledged that no overseas witness had ever been brought to testify on the base.

The detainee whose witnesses the Globe located is Abdullah Mujahid, a former Afghan provincial police commander arrested by US troops in July 2003. The US military maintains that Mujahid ``was fired from his appointed position due to suspicions of collusion with anti-government forces" and that he later attacked US troops in retaliation, according to the transcripts. Mujahid's defense was that he was promoted to a highway security job, not fired, and that he had always been friendly to American forces.

He requested four witnesses in Afghanistan, including the country's Interior Minister at the time, but was told that none could be contacted.

``The Afghan government was contacted on or about 26 November, 2004," the tribunal president told him, according to the transcript. ``As of this date, the Afghanistan government has not responded to our request. . . . Without the cooperation of that government, we are unable to contact those witnesses and to obtain the testimony you requested."

But in Afghanistan earlier this month, a reporter for the Globe located three of the four witnesses in a matter of days. The fourth witness is dead.

A phone call to President Karzai's office quickly led to Shahzada Masoud , an adviser to Karzai on tribal affairs. Masoud led an official delegation in May 2003 to Gardez, Mujahid's hometown about two hours south of Kabul, the capital, to persuade him to step down as police chief, a post in which he had served at the request of local elders since the fall of the Taliban regime in 2001.

Masoud said in an interview in Kabul that the move was part of a larger effort by the central government in Kabul to assert control across the country. Although Mujahid did not want to leave his post, and initially prevented his successor from entering the city, he eventually accepted and was given a lavish transfer-of-power ceremony attended by government dignitaries, Masoud said. American troops arrested Mujahid weeks later at his home.

A second witness, Gul Haider, the defense ministry representative who took part in Masoud's delegation, was found after the Globe obtained his phone number from a government official in Gardez. In an interview, Haider confirmed Masoud's account. He said that Mujahid had been promised a job protecting the highways in Kabul as a reward for leaving his post.

Haider, a former commander in the anti-Taliban Northern Alliance, described Mujahid as an ally of US troops, not a Taliban sympathizer. He recalled that Mujahid gave 30 of his own men to assist an American-led operation to clear Taliban members from a mountain cave in an area known as Shahikot in March 2002.

Haider said he had never heard any information that would lead him to believe that Mujahid turned on his former American allies, as was alleged at the hearings. Instead, he said, tribal and political rivalries probably landed Mujahid in Guantanamo -- with someone making false accusations. ``Afghanistan has many problems -- between tribes, communists, the Taliban," he said. ``That's why people like Abdullah [Mujahid], who are completely innocent, end up in jail."

The e-mail address for the third witness, former Afghan Interior Minister Ahmed Ali Jalali, was found with one call to the Interior Ministry. A quick Google search would have also located him: He is in Washington, D.C., teaching at the National Defense University.

Jalali, the man who made the decision to remove Mujahid from his post, said he wanted him ousted because of corruption and ``bullying," not sympathies with the Taliban or Al Qaeda. He said he had been on the verge of appointing Mujahid chief of a regiment of highway police, but that he changed his mind after he learned that Mujahid had stolen some police equipment.

Jalali said he learned months later that Mujahid had been taken to Guantanamo Bay because he was suspected of an attack on a provincial reconstruction team.

``I heard this, but I do not know the details," he said. ``I cannot pass judgment on this."

Mujahid's home in Gardez, a single-story building inside a high wall compound beside a field of swaying wheat, is well-known and easy to find. His relatives there are eager to show visitors a videotape of the ceremony during which he handed over power shortly before his capture.

The videotape, viewed by the Globe, shows the governor of Paktiya province at the time, Raz Muhammad Dalili, praising Mujahid in front of uniformed police officers and dignitaries, including Haider and Masoud.

``We have respect for Abdullah Mujahid, who brought peace and security to our province," the governor tells the audience. ``We are very grateful to him."

Other senior officials in Afghanistan's government support Mujahid's account.

The director of the Interpol Section of the Afghan National Police, General Ali Shah Paktiawal, said: ``He is innocent . . . Some people have given false information about him and that's why this problem has come up."

Taj Muhammad Wardak , who served as governor of Paktiya in 2002, said Mujahid ``had no contact with any terrorists or insurgents."

Wardak, who also served as interior minister, said that lies and rivalries had sent many innocent Afghans to Guantanamo Bay.

``I can tell you that most of the Afghans there are innocent," he said. ``You can investigate these people here. There is no need to send them to Guantanamo. It is a great sadness between our countries that will last for many years."

Walsh reported from Afghanistan and Stockman from Washington. Charlie Savage of the Globe staff also contributed from Washington.

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