Summary and Current Status
Hafizullah Shabaz Khail is an Afghan pharmacist. On March 3, 2010, he was released and reunited with his family after being held in U.S. custody for a year and a half at the Bagram Theater Internment Facility in Afghanistan. The U.S. military had raided his home in September 2008 and taken him along with 13 others, including Mr. Khail’s three children and his brothers, into custody. The others were released shortly thereafter. Mr. Khail, however, was held at Bagram for a year and a half—accused of providing treatment as a pharmacist to sick members of the Taliban. His U.S. lawyers, at the law firm Dechert LLP, who had successfully obtained his release from the Guantanamo Bay detention facility nine months earlier, suspect that he was taken to Bagram because they never had the opportunity to take his case to court and fully clear his name. Mr. Khail was released from Guantanamo six months before the U.S. Supreme Court ruled in favor of allowing the detainees at Guantanamo to challenge their detention.
In the summer of 2009, the U.S. military established new procedures for reviewing the cases of detainees held at Bagram. (These new procedures deny the detainees access to lawyers, but assign them personal legal representatives and the right to call witnesses who are “reasonably available.” To date, however, reliable reports indicate that in the majority of cases, the personal representative met only once with the detainee and usually only a week before the hearing. Furthermore, to date, only a few witnesses have been permitted to appear on behalf of a detainee.) Mr. Khail was given a Detainee Review Board hearing, under the new procedures, in February 2010, after which he was cleared for release.
Hafizullah Shabaz Khail is an Afghan pharmacist from the Zormat District in Paktia Province. He reportedly has had several years of training in pharmacology and is believed to have studied at Kabul University. Mr. Khail is from the town of Zormat and ran a pharmacy there for many years. In 1998, after being held in a jail by the Taliban for several months, beaten, and accused of opposing the Taliban, he decided to move his pharmacy to his home because he feared being picked up again by the religious police. People in his rural district called him doctor and came to his home for treatment. Mr. Khail has a wife and two children.
Mr. Khail was arrested in March 2003 by local Afghan police and turned over to the U.S. military for bounty money. He was held at the U.S. Guantanamo Bay Naval Base for four and a half years. His Internment Serial Number at Guantanamo was 1001. According to a transcript of “enemy combatant” hearings published by the Associated Press on March 15, 2006, Mr. Khail “was accused of being a member of the Taliban and participating in military operations against the U.S. coalition.” He testified at the hearing that he was appointed mayor of Zormat after U.S. ally Hamid Karzai came to power. “While I was mayor in Zormat, there were no problems with the Americans. I met with American commanders several times. We even took pictures together,” he is reported to have said.
According to Mr. Khail’s lawyers, “he was also a respected member of the community [in Zormat] and in times of trouble was asked to serve on committees of elders who promote civil peace and order. In the months following the fall of the Taliban, he twice served on such committees, without pay, at the request of government officials.” In an interview in late 2008 then governor of eastern Paktia province Raz Mohammed Dilili told the Associated Press that he knew Mr. Khail well, that he was well-respected by the people of his district, and that was why he had personally appointed him to the shura (council of elders). As the leader of an ad hoc 15-member commission of elders, he and the other members were investigating charges of robbery and corruption involving a powerful local security officer, Police Chief Abdullah Mujahed. Mr. Khail was arrested during a meeting with the other members of his commission shortly after tracing a robbery of $3,000 to Police Chief Mujahed. At the time, the U.S. military was paying bounty money for the identification of suspected Taliban allies and, according to Mr. Khail’s lawyer, there is some evidence that he was named as a Taliban sympathizer by a member of the robbery ring that he was about to expose.
According to his lawyers, Mr. Khail had hearings before a Combatant Status Review Tribunal at Guantanamo and at least one hearing before an Administrative Review Board. (Combatant Status Review Tribunals are tribunals at the Guantanamo naval base that determine if detainees meet the legal requirements for being classified as an “enemy combatant.” Guantanamo Bay Administrative Review Boards convene military hearings. The Board then recommends to Pentagon officials whether a detainee should be released because he poses no threat or should continue to be held for another year.) To the best of our knowledge, however, no decision was made on Mr. Khail’s case as a result of these hearings.
At Guantanamo Mr. Khail’s lawyers reported that he was held for most of each day in a small cage and was permitted only very limited contact with other detainees. His contact with the outside world was primarily through brief visits every few months by representatives of the International Committee of the Red Cross (ICRC) and by his lawyers. Prior to each visit by the ICRC, he was given a limited amount of time to write a letter and had to choose whether to write to his family or lawyers. The ICRC representatives reportedly acted as intermediaries and transmitted the letters back and forth between him and his family and lawyers. While, in the past, the detainees at Guantanamo reportedly were permitted to keep their letters with them in small plastic boxes, this “privilege” was taken away following the suicides of three Guantanamo detainees. Mr. Khail was not permitted access to a telephone. He reportedly requested non-fiction reading material that “I can learn something from.” According to his lawyers, however, “no habeas counsel has been able to get such material cleared for delivery to detainees.” Mr. Khail repeatedly told officials at Guantanamo that he was willing to resume his public work if released and, if not needed, he would reopen his pharmacy.
After four and a half years in detention, Mr. Khail was one of several Afghan detainees released from Guantanamo and transferred into Afghan government custody in December 2007. He and the others were held in a special wing of Policharkei Prison, Block D, which was built by the U.S. government to hold former Guantanamo detainees, until their cases were reviewed. Although the conditions in Policharkei Prison are known to be deplorable, his lawyers reported that conditions in Block D were better than at Guantanamo, where he was held in solitary confinement. In Policharkei, Mr. Khail was held in a group cell and was allowed regular but short visits from his family and reading materials.
Mr. Khail’s lawyers reported that the Afghan government refused the U.S. government’s request that the detainees from Guantanamo be held indefinitely in the Afghan prison. A few of the detainees from Guantanamo held in Afghanistan have been released without legal review. According to Mr. Khail’s lawyers, however, most must go through a legal process that has been established for reviewing Guantanamo cases. It is called a “trial,” but is actually similar to the Combatant Status Review Tribunals at Guantanamo. The “trial” consists of the prosecutor reading allegations from the U.S. Guantanamo files and the defense lawyer, if there is one, reading a statement denying those claims, usually on the basis of an interview with the prisoner. Mr. Khail’s U.S. lawyer reported that the defense lawyers are from a single nongovernmental organization, selected by the U.S. and Afghan governments, and are both overworked and inexperienced. The outcomes of the “trials” that have been held thus far have been mixed. A few detainees have been acquitted as a result of their “trial.” Most, however, have been found guilty and sentenced to “time already served.” A few have been convicted to prison sentences up to 20 years
Most detainees reportedly have their cases reviewed within a few months of arriving at Policharkei. Mr. Khail was among 29 prisoners at Policharkei—formerly held at Bagram air base or Guantanamo—who received amnesty from Afghan President Hamid Karzai and were set free on April 29, 2008.