By Carlotta Gall and Andy Worthington

The New York Times

Tuesday 05 February 2008

Kabul, Afghanistan - Abdul Razzaq Hekmati was regarded here as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999.

But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan when, senior Afghan officials here contend, he was falsely accused by his enemies of being a Taliban commander himself. For the next five years he was held at the American military base in Guantánamo Bay, Cuba, where he died of cancer on Dec. 30.

The fate of Mr. Hekmati, the first detainee to die of natural causes at Guantánamo, who fruitlessly recounted his story several times to American officials, demonstrates the enduring problems of the tribunals at Guantánamo, say Afghan officials and others who knew him.

Afghan officials, and some Americans, complain that detainees are effectively thwarted from calling witnesses in their defense, and that the Afghan government is never consulted on the detention cases, even when it may be able to help. Mr. Hekmati's case, officials who knew him said, shows that sometimes the Americans do not seem to know whom they are holding. Meanwhile, detainees wait for years with no resolution to their cases.

In response to queries, a spokeswoman for the Pentagon, Cynthia O. Smith, said the military tribunals at Guantánamo contained "significant process and protections," including the right to call witnesses.

While Ms. Smith would not discuss specifics, she said that there was nothing to indicate that Mr. Hekmati's case was handled improperly, and that detainees at Guantánamo were given a range of protections, including "the opportunity for a detainee to be heard in person, call witnesses and present additional information that might benefit him."

Whether those protections are sufficient has been widely debated and is now being considered by the United States Supreme Court. In the tribunals, which consider only whether detainees have been properly classified as enemy combatants, detainees are not allowed to have lawyers or see the evidence against them. The Supreme Court case will decide whether they have the right to broadly appeal their detentions in federal court.

Of the 275 detainees at Guantánamo, at least 180 have sought to challenge their detentions.

Several high-ranking officials in President Hamid Karzai's government say Mr. Hekmati's detention at Guantánamo was a gross mistake. They were mentioned by Mr. Hekmati in his hearings and could have vouched for him. Records from the hearings show that only a cursory effort was made to reach them.

Two of those officials were men Mr. Hekmati had helped escape from the Taliban's top security prison in Kandahar in 1999: Ismail Khan, now the minister of energy; and Hajji Zaher, a general in the Border Guards. Both men said they appealed to American officials about Mr. Hekmati's case, but to no effect.

"What he did was very important for all Afghan people who were against the Taliban," Hajji Zaher said of Mr. Hekmati's role in organizing his prison break. "He was not a man to take to Guantánamo."

Hajji Zaher, whose father served as vice president under Mr. Karzai for six months, warned that the case of Mr. Hekmati, who is widely known here by his nickname, Baraso, would discourage Afghans from backing the government against the Taliban. "No one is going to help the government," he said.

Mr. Hekmati never had a lawyer, said Zachary Katznelson of Reprieve, a British charity that represents a number of Guantánamo detainees. At his October 2004 review hearing, Mr. Hekmati specifically asked that Hajji Zaher and Mr. Khan be contacted to act as supporting witnesses.

The military tribunal president said the Afghan government did not respond to requests to locate the men, and ruled that they were "not reasonably available."

Although both men are well known to the American authorities in Afghanistan, both Hajji Zaher and Mr. Khan said the American authorities had never asked them to appear.

Unidentified Accusers

In Mr. Hekmati's tribunal at Guantánamo in 2004 to assess his status as an enemy combatant, American officials accused Mr. Hekmati of a variety of charges made by unidentified sources, and referred to him only as Abdul Razzaq, his first names, which are common in Afghanistan.

According to transcripts released by the Pentagon, the United States military charged, among other things, that Mr. Hekmati was "high in the Al Qaeda hierarchy," acted as a smuggler and facilitator for it, and was "part of the main security escort for Osama bin Laden." He was also accused of attending a terrorist training camp near Kandahar and of involvement in assassination attempts against Afghan government officials.

He was also identified as a senior leader of a 40-man Taliban unit, and even as supreme commander in Helmand Province.

That last allegation was rebutted by another unidentified detainee, who explicitly stated that Mr. Hekmati looked nothing like the Taliban commander and that the commander was "not the same person as the detainee," according to the transcript.

Mr. Hekmati denied the charges, too, saying he did not even live in Afghanistan after the 1999 prison break, when he ran afoul of the Taliban. He insisted that most of the allegations had been directed against him by two of his personal enemies.

The first was Sher Mohammed Akhundzada, the post-Taliban governor of Helmand Province, who, Mr. Hekmati said, was directly responsible for his arrest after he reported the governor for corruption and for protecting a number of senior Taliban members in Helmand.

The second was Mohammed Jan, a distant cousin who had falsely denounced him as part of a long-running family feud. "It was one person who gave them wrong information and just because of this wrong person, I am here," Mr. Hekmati pleaded at his October 2004 review hearing.

"They can't prove anything against me because I never did anything wrong," he went on. "The person that was giving you all that wrong information, this is the person that killed my two brothers, my sister, my father and two of my sons."

Mr. Akhundzada denied any part in Mr. Hekmati's arrest, attributing it to a mistake by American Special Forces. He said they were often fed false information.

But friends of Mr. Hekmati said he was arrested in 2003 by Afghan forces in the provincial capital, Lashkar Gah, during Mr. Akhundzada's tenure and later turned over to American forces.

Mr. Hekmati maintained that he was opposed to the Taliban, whom he described as "dangerous and dirty people" who had deviated from Islam.

"Taliban and Al Qaeda are the same," he said at his review board hearing in September 2005. "When I'm against Taliban I'm going against Al Qaeda. There's an expression in Pashto that you cannot hold two watermelons in one hand at the same time."

The only allegation that he accepted was that he had worked as a truck driver for the Taliban, but he said he had been forced to work for them three months a year, as every able-bodied man was during the Taliban's rule.

Several people in Afghanistan, including Hajji Mir Wali, a member of Parliament, and Mullah Abdul Salam Zaeef, the former Taliban ambassador to Pakistan, who was held in a cell next to Mr. Hekmati in Guantánamo for three months in 2003, confirmed that he was a truck driver for the Taliban government in the 1990s.

But Mullah Zaeef said Mr. Hekmati could never have worked for the Taliban again after 1999, such was their fury over the prison break he organized.

Hajji Wali, who knew Mr. Hekmati well, said: "It was the Americans' mistake. I know he had no relations with the Taliban."

Yet the Americans on his tribunal and review boards seemed unaware of how significant the prison break was, or how important were the men he had helped escape and whom he had asked to be called as witnesses.

The Prison Break

The 1999 escape was a deep humiliation for the Taliban government, which blocked roads and searched houses across the country for days afterward and offered $1 million for the capture of the escapees. Two of Mr. Hekmati's relatives were badly tortured by the Taliban after the prison break as the Taliban looked for information.

Two of the men Mr. Hekmati freed, Mr. Khan and Hajji Zaher, returned to the battlefield to lead forces against the Taliban. They both received significant American support in 2001 and worked with Special Forces units.

A third man who escaped with them was another commander of the anti-Taliban Northern Alliance, Gen. Mohammed Qasim.

According to Mr. Hekmati's account in his hearing in September 2005, he organized the escape because he opposed the Taliban's "ruthlessness and injustice."

Mr. Hekmati said he had written a letter outlining his escape plan, which his son, Hekmatullah, who worked as an intelligence officer at the Taliban's high security prison, smuggled in to Mr. Khan. Mr. Khan then put Mr. Hekmati in touch with his own son, who gave him $20,000 to buy a Toyota Land Cruiser for a getaway vehicle.

Mr. Hekmati said that because his son was trusted by the Taliban, he was able to walk the three prisoners out one night to where he was waiting in the dark with the vehicle. Hekmatullah corroborated much of his father's account in an interview in 2002.

The men escaped to Iran, where Mr. Khan provided Mr. Hekmati and his family with a house and financial support in return for his daring. Mr. Hekmati said he returned to Afghanistan only in 2002, after the Taliban were toppled and Mr. Karzai's interim government was installed. Within a year, he was arrested.

The Military Tribunals

In a report in February 2006 based on an analysis of documents released by the Pentagon, researchers at Seton Hall University School of Law, in Newark, concluded that no outside witnesses had ever been called to appear at Guantánamo. Lt. Col. Stephen E. Abraham, a former United States intelligence officer who had worked on the tribunals, stepped forward last June to criticize the tribunals.

In a submission to the Supreme Court, he condemned them for relying on generalized evidence that would have been dismissed by any competent court, and as being devised to rubber-stamp the administration's assertion that the detainees had been correctly designated "enemy combatants" when they were captured and that they could be held indefinitely.

In a second submission, to the United States Court of Appeals for the District of Columbia Circuit in November, Colonel Abraham explained that he was "not aware of any realistic attempts" to "identify or even attempt to bring before the tribunal witnesses or their statements," and concluded that the whole process "was designed to conduct tribunals without witnesses other than the accused detainee."

That is one of the reasons Afghan officials have asked that Afghan detainees be transferred from Guantánamo to Afghanistan. "Of course a judicial process needs witnesses and documents and evidence," Minister of Justice Mohammad Sarwar Danish said. "Most of these cases have not come to trial, and are not proceeding, and that is why we asked them to be moved here."

After Mr. Hekmati was arrested, two of the men he broke out of prison, Mr. Khan and Hajji Zaher, said they appealed to American and Afghan officials for his release. "I asked President Karzai to help, but unfortunately it did not help," Mr. Khan said. He said he also asked the American ambassador to Afghanistan at the time, Zalmay Khalilzad, with no result.

"We did try but it was not working," Hajji Zaher said in a phone interview. "When they are sending someone to Guantánamo, they have their own rules."

After Mr. Hekmati's death at Guantánamo, his body was returned to Afghanistan and quietly buried in an unmarked grave in Kandahar on Jan. 8. His family did not dare attend the funeral, fearful of both the Taliban and the Americans, friends said.

As the Taliban has reasserted itself in much of southern Afghanistan, Mr. Hekmati's son remains in hiding. Neither he nor any relative or elder of their tribe collected his father's body.

"He is caught in the middle," said Hajji Wali, a family friend. "He is scared of the Taliban and scared of the government and the Americans, because the Americans took his innocent father and they could take him, too."

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