Zahir was approved for transfer on July 11, 2016.[7]
On January 17, 2017, four days before the inauguration of Donald Trump, ten men were transferred from Guantanamo, while American and Omani officials declined to identify the men, Abdul Zahir's lawyer told the Associated Press that he had been released.[8][9][10]
Background
Abdul Zahir was transferred to Guantanamo on October 28, 2002.[11][12]
Zahir was charged with conspiracy, aiding the enemy and attacking civilians in connection with the grenade attack that wounded Canadian reporter Kathleen Kenna.[13][14]
Kenna wrote an op-ed about her feelings about Abdul Zahir's trial on December 27, 2009.[15]
She wrote that she and her companions weren't interested in retribution.
She wrote that she hoped Abdul Zahir got 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.[13]
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. —Kathleen Kenna[15]
Official status reviews
Originally the BushPresidency 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.[16]
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
According to The New York TimesGuantanamo Docket Zahir had annual status reviews in 2004 and 2007.[12]
There is no record that he had an annual reviews in 2005, 2006 or 2008.
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:[20]
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.[20]
Abdul Zahir was listed as one of the captives who "The military alleges ... are members of al-Qaeda."[20]
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."[20]
When he assumed office in January 2009 PresidentBarack Obama made a number of promises about the future of Guantanamo.[21][22][23]
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.[24]
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.[25][26]
Joint Task Force Guantanamo drafted a 12 page assessment on November 19, 2008.[27][28]
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.[29][30]
Kenna wrote an op-ed about her feelings about Abdul Zahir's trial on December 27, 2009.[15]
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.
Abdul Zahir was transferred to Guantanamo on October 28, 2002.[11][12]
The first hearing in Zaher's case was held on April 5, 2006.[31][32]
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..."[33]
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.[34]
It was convened because Zahir sole defense attorney, Lieutenant ColonelThomas Bogar, had filed a motion questioning whether the Presiding OfficerColonelRobert 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.[35]
Transfer to Oman
On January 17, 2017, Oman accepted the transfer of ten men from Guantanamo.[8][9] 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.[10]
^
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 2011-03-13. 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 2012-03-24. 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.
^ ab
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."
^ abCarol 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.
^"Tenth Gitmo inmate charged". United Press International. 2006-01-20. Archived from the original on 2016-03-04. 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.
^ ab"U.S. military reviews 'enemy combatant' use". USA Today. 2007-10-11. Archived from the original on 2007-10-23. 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.
^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 2016-03-04. 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 2011-01-18. 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 (2006-05-16). "The Mouth That Prohibits Is the Mouth That Permits". ACLU. Archived from the original on 2012-08-14. 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 2012-08-14. 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.
