How the Government Hid Their Pacha Wazir Mistake by Denying Habeas Corpus

Scott Horton’s revelation that the detainee described as “CAPTUS” in Glenn Carle’s book, The Interrogator, is an Afghan named Pacha Wazir reveals something else: in spite of the fact that Carle realized the CIA had been mistaken about Wazir’s ties to al Qaeda sometime in 2002, Wazir was not released from US custody until February 24, 2010.

We held Wazir for over seven years after the time Carle first figured out the CIA had made a mistake.

Of particular concern, however, are the decisions the government made to prevent Wazir from getting any kind of review of his detention.

Rather than move Wazir from the Salt Pit to Gitmo–where he would have received a Combatant Status Review Tribunal–he was instead moved to Bagram in 2003 or 2004. At Bagram–as John Bates summarized in his opinion regarding habeas petitions for three other Bagram detainees–the review was much less stringent.

The initial “enemy combatant” determination is made “in the field.” Tennison Decl. ¶¶ 11-12. For detainees at Bagram, the initial determination is reviewed within 75 days, and then every six months thereafter.19 Id. ¶ 13. The reviewing body is the Unlawful Enemy Combatant Review Board (“UECRB”), a panel of three commissioned officers. The UECRB reviews “all relevant information reasonably available,” and detainees have the opportunity to make a written statement.20 Id. ¶¶ 12-13. The UECRB then makes a recommendation by majority vote to the Commanding General as to the detainee’s status. Id. ¶ 13. There is no recourse to a neutral decision-maker.

Respondents concede, as they must, that the process used for status determinations at Bagram is less comprehensive than the CSRT process used for the Guantanamo detainees. Tr. at 53. Focusing the inquiry on the flaws Boumediene identified in the CSRT process, the UECRB process is plainly less sophisticated and more error-prone. Unlike a CSRT, where a petitioner has access to a “personal representative,” Bagram detainees represent themselves. Obvious obstacles, including language and cultural differences, obstruct effective self-representation by petitioners such as these. Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. Respondents’ far-reaching and everchanging definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

In September 2006, Wazir did file a habeas petition–his suit was ultimately consolidated with the three Bagram detainees whose DC Circuit habeas denial remains the relevant decision denying Bagram detainees habeas. But Wazir’s petition was denied in spite of the fact that a former Bagram detainee revealed that Wazir had been told some time in June or July 2008 there was no evidence against him.

About four months ago, in June or July of this year, one of the investigators in Bagram told Haji Wazir that there was no incriminating evidence against him.

More troubling, Wazir’s petition was denied on jurisdictional grounds because he’s an Afghan citizen. Yet even before that decision, Afghan prosecutors determined on June 26, 2008 that coalition forces had no evidence of collaboration with al Qaeda, so Wazir should be freed.

In the documents from coalition forces, it has been mentioned that evidence, physical supporting material and pictures do not exist to prove the accusations, he has not been arrested in a face to face battle, has not performed any terrorism related actions, polygraph tests show that there are no evidence of deception.

Based on the requirements of his job and business he has performed currency exchange activities in all parts and corners of the world legally to earn his livelihood.

Therefore, the commission believe that there are no documents in his file that would support the allegations against this person and he has already spent more than five years in prison. Thus, it is considered appropriate if the suspect is released from prison, introduced to National Independent Commission on Peace and Reconciliation and a report be delivered to the President of Islamic Republic of Afghanistan.

Nevertheless, several weeks after the Afghan determination that coalition forces had no evidence against Wazir, a DOD UECRB determined that he was an unlawful enemy combatant.

Petitioner Wazir is a detainee at BTIF. See id. ¶ 19. DoD’s records reflect that he was captured in Karachi, Pakistan, and was determined to be an unlawful enemy combatant both when he was first brought under DoD custody and in subsequent reviews. See id. ¶ 20. The UECRB’s most recent reevaluation of his status was on July 17, 2008. Id. Following that review, his status as an unlawful enemy combatants was reaffirmed. Id.

So ultimately, John Bates denied his petition on jurisdictional grounds to prevent tensions between the US and Afghans. But the US recertified Wazir as an unlawful enemy combatant even after the Afghans had determined there was no evidence to support such a designation.

Now, there’s a lot else that’s funky about the government’s treatment of Wazir. For example, they claimed he had been arrested November 13, 2003 in Karachi, even while it was clear he had been arrested a year earlier in Dubai. Then, the US sent paperwork transferring custody of Wazir to an Afghan prison, but did not transfer Wazir himself (and then went on to to reaffirm his enemy combatant status).

But ultimately, there’s also the question of why they left someone of such purported import in Afghanistan, rather than Gitmo. And while the government insists they don’t make detention decisions to avoid giving detainees access to habeas, the three other detainees whose habeas petitions were denied recently submitted new evidence, including two WikiLeaks documents disproving a government claim that it had never moved detainees from Gitmo to Bagram. Of particular note is the detainee who–according to an Afghan War Log cable–was transferred from Gitmo to Bagram on January 18, 2009, just two days before Obama would become President.

Of course, even if they had granted jurisdiction for Wazir to file a habeas peittion, two key pieces of evidence had already been disappeared: the two cables Carle wrote in late 2002 or early 2003 documenting that Wazir was not the al Qaeda banker the CIA had made him out to be.

For much of the time the CIA was fighting with Glenn Carle over how much detail he could write about Wazir, Wazir was stuck in Bagram, having already been cleared for release by the Afghans yet still–in spite of the lack of evidence–claimed to be an enemy combatant by the US.

That’s the kind of injustice our refusal to offer habeas corpus to Bagram detainees permits.

16 replies
  1. Jim White says:

    Don’t forget that Carle’s two final cables from the Salt Pit where he laid out clearly for the first time (after only hinting at the idea in previous cables) never got sent, and as Carle said about that during his Book Salon, “they don’t exist” since they weren’t sent. So that probably means that even though there was no evidence against Wazir, there also was probably no official record that he wasn’t who they thought he was.

    • emptywheel says:

      Right–I note the two disappeared cables at the end of the post.

      But I suspect that Wazir was “arrested” in Karachi after they figured out he wasn’t who they said he was (I sort of wonder if the same process went on with Siddiqui). Which would say that by November 2003, others had made the same determination that Carle had.

  2. MadDog says:

    That brief on the new evidence was just mind-boggling!

    How many times can US government lawyers continue to lie in Federal Court before the judges wake up and start throwing their asses in jail?

  3. nusayler says:

    Referring to Carle’s entry #74 from this weekend’s Book Salon discussion, do we know what this ominous thing is that happened to Wazir which Carle cannot discuss?

    Also, if we must have a CIA, then I wish to God the agents would be more like Carle in one sense and not like him in another. I wish they all, like Carle, were able actually to look at what they do from a critical, questioning, rational perspective.

    For what I wish the CIA WERE NOT, I refer you to the introduction to Carle’s book which reads like the winning entry in a “Worst Ian Fleming Imitation” contest.

    I was suave, intellectual, and sophisticated, talking over sparkling glasses in salons with elegant women in low-cut designer dresses, appetizing curves, and high heels, smiling at banalities as we looked past each other.

    Carle reveals himself to be totally in the thrall of a mythology in which they are a noble breed of morality-free avenging angels whose destiny is to perpetrate unspeakable acts of inhumanity and perfidy because only by such acts can we be “saved.”

    People like Carle, all the Special Forces, and a great number of people at high levels in “the war on terror”, despite all their protestations to the contrary, have given their first and all consuming allegiance not to the nation nor the Constitution but to this mythology.

    • PeasantParty says:

      Carle reveals himself to be totally in the thrall of a mythology in which they are a noble breed of morality-free avenging angels whose destiny is to perpetrate unspeakable acts of inhumanity and perfidy because only by such acts can we be “saved.”

      They are trained to be that way. The problem lies not in those serving, but the leaders. I don’t think that they are ever really told the real reasons they are ordered to do what they do. Oh, and yes there are some that have lost all morality or never had any in the first place. I do agree that our agents are sent out to do horrible things for the wrong reasons. Many of them do not know the real reason or told that it is to save our country from some 24 armed octopus of death and destruction.

  4. PeasantParty says:


    I really, really enjoyed the book Salon. You asked some very tough questions and I think he tried to answer. I noticed several times he stated that he was certain that the lack of getting his cables/letters through was just a mistake. We know that is speak for it didn’t happen because they didn’t want it to happen, but a lower rank personnel is not to buck it.

    The thing that bothers me the most about this case is that the US could not even bring themselves to tell Wazir that he was in the wrong place at the wrong time, apologize, and tell him war is hell. They continued the farce and did so on purpose! The bit about messing up relations with the Afghans is another ruse. You have done such a great job of putting the pieces together for us. The fact that Wazir was arrested in Dubai is a real eye opener!

    • DWBartoo says:

      Apparently, the woman could merely pay a fine, remove the veg-get-tables and be done with it. However, she has determined, again apparently, to take a “stand” based upon some vague concept called “principle”.

      The local wisdoms have determined that vegetables are not appropriate because they are not “typical” of what is generally found in front yards, those typical things being, “nicely mowed grass, flowers, and trees”.

      Now this is all scuttlebutt, let me remind you, and not to be taken as, in any way or fashion, being typical of the behavior of the political class.


      • fatster says:

        Tsk tsk, DWB. You omitted “neatly trimmed hedges” in your list of typical things. And you might want to consider “a few tasteful flowers”, otherwise some people would no doubt go waaaaaaay overboard and their front yard resemble a flower garden rather than yr standard, sterile, chemically treated suburban front lawn.

        • DWBartoo says:

          I stand pleasantly corrected, holding the watering-can, behind flower power, fatster, whilst acknowledging the worth and value, to the street, of high-quality grasses. However, regarding those manicured, and careful “hedges” of which you speak, one readily imagines that Eric Cantor’s, for example, are “well trimmed” with all due and proper patriotic, stars-and- stripes bunting as well as evidencing a most astute grasp of the “opportunity” of “location”.

          Remember, the world is kept in stitches by many sew and sews, and Eden, at times, by sow and sows.

          Thus, we reaps what we so?

          Ah yes, there goes the truck which keeps the neighbor’s dandelions at bay.

          I am, personally, pushing the “egdes” of the acceptably “typical”, I admit, fatster, growing two tomato plants in ornate planters on the front porch, on either side of my red-painted front door, so my own renegade proclivities may well catch up with me …


  5. fatster says:

    I planted plumbago all around the front of my little house because I like the fluffy blue flowers. Of course, the plumbago drops its leaves in the winter and its branches and twigs turn perfectly black. I’ve often thought of stringing holiday lights in the dead-looking plumbago each winter much as my neighbors string the damned things all over their houses and yards, but I don’t. In addition I have pink gaura, African daisies, crepe myrtles, rock roses, morning glories and all manner of blooming things in the front yard. And, of course, a magnolia for childhood’s sake.

    My front yard is rather out-of-synch with the rest of the neighborhood, but then what do you expect from a fading flower child?

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