DC district court denies former Taliban governor’s habeas petition

In a decision released on Thursday, a DC district court denied Guantanamo detainee Khairullah Said Wali Khairkhwa’s petition for a writ of habeas corpus. Khairkhwa argued that he had disassociated himself from the Taliban by the time of his capture. But District Judge Ricardo Urbina, who issued the opinion in late May, concluded otherwise.

Kharikhwa “was, without question, a senior member of the Taliban both before and after the US-led invasion of Afghanistan in October 2001,” Judge Urbina found. Khairkhwa “served as a Taliban spokesperson, the Taliban’s Acting Interior Minister, the Taliban Governor of Kabul and a member of the Taliban’s highest governing body, the Supreme Shura.” Khairkhwa was also appointed the governor of the Herat province.

Khairkhwa claimed that his Taliban position was purely civilian in nature, and that he had no military responsibilities. The record showed, however, that Khairkwa was deeply involved in the Taliban’s war planning. Khairkhwa’s meetings with Iran, in particular, garnered the court’s attention.

The court found that Khairkhwa “has repeatedly admitted that after the terrorist attacks of September 11, 2001, he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran’s offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces.”

Khairkhwa’s admissions can be found in declassified and leaked documents prepared at Guantanamo. The Long War Journal has previously reported on Khairkhwa’s and the Taliban’s involvement with Iran post-9/11. [See LWJ report, Iran and the Taliban, allies against America.]

The district court cited Khairkhwa’s “multiple, consistent accounts” concerning the meeting with the Iranians. Iran told Khaikhwa and the Taliban delegation that Iran could: provide shoulder-fired missiles (SAM-7’s), “broker a peace between the Taliban and the Northern Alliance so Muslims could unite against the United States,” and “track all movements by the United States.” In addition, the “Iranians also offered to open their border to Arabs entering Afghanistan.”

Iran’s delegation at this meeting included, according to the court, the “Deputy Commander of the Iranian Foreign Intelligence Service and the Head of the Afghan Department of the Iranian Foreign Intelligence Service.”

Iran’s proposed coalition between the Northern Alliance and the Taliban did not come to fruition. But Iran did begin arming the Taliban, as promised at the October 2001 meeting Khairkhwa attended. Iran also opened its borders to Arabs (including al Qaeda members) traveling to Afghanistan for jihad. In reality, leaked JTF-GTMO files and other evidence reveal that Iranian soil was frequently used by al Qaeda for safe transit long before the Sept. 11 attacks.

The October 2001 meeting between the Taliban and Iran is not the only one Khairkhwa attended. The court cites an earlier meeting, on Jan. 7, 2001, as well. During that meeting, Iran and the Taliban discussed “a variety of matters, including the Taliban’s ongoing conflict with the Northern Alliance.”

Khairkhwa was, in some ways, a natural pick to attend the Taliban’s negotiations with Iran. After the Taliban slaughtered eight Iranian diplomats in Mazar-e-Sharif in 1998, Mullah Omar appointed Khairkhwa to head the supposed investigation. Even though Khairkhwa was a military commander in Mazar-e-Sharif in 1997 and 1998, declassified documents produced at Guantanamo note that Omar wanted Khairkhwa to smooth over relations with the Iranians after the two nations nearly went to war. For that reason, Omar named Khairkhwa the governor of Herat province, which shares a border with Iran.

Curiously, another member of the Taliban’s envoy to Iran in October 2001 was Abdul Manan Niazi. According to the court, Niazi is a “former Taliban military commander and Governor of Kabul, who had personally overseen the massacre of thousands of Shiites” in Mazar-e-Sharif in 1998. Khairkhwa was captured at Niazi’s residence in Chaman, Pakistan in 2002.

Still another member of the Taliban’s delegation was Qari Tahair, who “had previously worked with the Iranians.” The court did not provide any other details about Tahair’s relationship with Iran.

In addition to Khairkhwa’s meetings with the Iranians, Judge Urbina found that Khairkhwa “exhibited a detailed knowledge about sensitive military-related matters, such as the locations, personnel and resources of Taliban military installations, the relative capabilities of different weapons systems and the locations of weapons caches.” The court also found that Khairkhwa “rose to the highest level of the Taliban,” “remained within Mullah Omar’s inner circle,” and was clearly a part of the “Taliban’s formal command structure.”

Afghan peace council seeks Khairkhwa’s release

Afghanistan’s High Peace Council, which was established by President Hamid Karzai, has sought Khairkhwa’s release from Guantanamo to participate in peace negotiations. [See LWJ reports: Afghan peace council requests release of Gitmo detainee and Afghan peace council reportedly seeks talks with Taliban commanders held at Gitmo.]

In connection with these efforts, Hekmat Karzai was introduced as an expert witness during the habeas proceeding. Hekmat is the cousin of Hamid Karzai and the Director of the Centre for Conflict and Peace Studies in Kabul.

Hekmat, according to the court, “candidly acknowledged that he and his organization” want Khairkhwa released from Guantanamo. “Mullah Khairkhwa is one of the individuals who has quite a lot of respect within the Taliban and from so many different communities,” Hekmat testified. “Many of the senior people still hold him in very high esteem, in high regards,” Hekmat claimed, “so releasing him would make a very serious statement not only in terms of the peace process but also about what the United States represents.”

Hekmat also testified that Khairkhwa has “absolutely no military background.” Hekmat based his argument primarily on interviews he conducted with two of Khairkhwa’s former Taliban colleagues, both of whom are also seeking his release.

One of the two is Wakil Ahmed Muttawakil, the Taliban’s former foreign minister, who works for Hekmat’s organization and has played a leading role in reconciliation efforts. Muttawakil testified that Khairkhwa was merely a “civilian administrator” during the Taliban’s reign.

The court did not agree with Hekmat or Muttawakil, finding that Khairkhwa, based on his own admissions and other voluminous evidence, had waged jihad since the 1980s and compiled an extensive dossier of militant activities.

Khairkhwa himself claimed during the proceedings that he had reached out to Hamid Karzai to surrender. But the court did not buy his argument, noting that Khairkhwa did not turn himself in, but instead retreated with Taliban forces to Pakistan.

A “high” threat

The US military and intelligence officials at Guantanamo who investigated Khairkhwa would undoubtedly disagree with Hekmat Karzai’s assessment, just as the district court did. According to a leaked Joint Task Force Guantanamo (JTF-GTMO) threat assessment, dated March 6, 2008, Khairkhwa was deemed a “high” threat to the US and its allies. JTF-GTMO recommended that the Department of Defense retain Khairkhwa in custody.

The leaked file also contains other details about Khairkhwa’s career that did not factor into his habeas proceedings. Khairkhwa was “trusted and respected” by not only Mullah Omar, but also Osama bin Laden, according to the JTF-GTMO file. One source with “indirect access” told authorities that Khairkhwa “controlled access to one of [bin Laden’s] most important bases located in Herat Province.” Although the “camp was established as a Taliban facility,” it “was controlled by” bin Laden and only bin Laden or Khairkhwa “could authorize entrance into the camp.”

Another source, described as a “reliable contact,” reported that bin Laden named Khairkhwa “as a Taliban representative to a joint delegation in March 2001.” The delegation tried “to drive a wedge between the Northern Alliance and its leader, Ahmad Shah Masoud.” Obviously, this effort failed.

JTF-GTMO concluded that Khairkhwa and “his deputy were probably associated with a militant training camp in Herat operated by deceased” al Qaeda in Iraq commander Abu Musab al Zarqawi.

Khairkhwa was also “identified as a narcotics trafficker,” and JTF-GTMO’s analysts concluded that he “probably used his position and influences to become one of the major opium drug lords in Western Afghanistan.”

Thus far, despite the peace council’s request, American officials have not transferred Khairkhwa to Afghanistan to participate in reconciliation efforts.

Thomas Joscelyn is a Senior Fellow at the Foundation for Defense of Democracies and the Senior Editor for FDD's Long War Journal.

Tags: Afghanistan, Guantanamo, Iran, Mullah Omar, Osama bin Laden, Taliban