Saifullah Paracha, the oldest prisoner at Guantanamo Bay, has lost 17 years of his life and never been charged with a crime.
SAIFULLAH PARACHA has lost around 17 years of his life to the infamous Guantanamo Bay detention camp. That’s 6,205 days. 148,920 hours. 8,935,200 minutes. 536,112,000 seconds … and counting.
Once a wealthy businessman from Karachi, Pakistan, the inmate no. 1094 is now 74 years old — the oldest of all the detainees at the controversial US military prison located on the coast in southeastern Cuba.
For many outside the detention centre, he could be a menacing, vile character clad in the fluorescent orange jumpsuit that has become synonymous with Guantanamo Bay detainees, rightfully kept behind bars for his (alleged) direct or indirect involvement in heinous acts of terrorism — one of the “bad dudes”, as former US president Donald Trump once referred to men he believed deserved to be held at the prison.
Or, he could be none of that.
He could be an innocent, beleaguered septuagenarian, who, for years, has been surviving abysmal conditions, torture and pain at the Guantanamo Bay detention centre for a crime he never committed.
Which of these two scenarios is closer to reality is anybody’s guess since Paracha has never faced trial over the accusation that led to his detention — facilitating al Qaeda. And naturally, he was never formally charged.
Why, then, does he — and several other uncharged detainees — continue to spend their days in isolation, locked up in cells at the Guantanamo Bay detention camp.
Few may have a definite answer to that.
Paracha’s lawyer in the US, Shelby Sullivan-Bennis, who may have provided a clear-cut reasoning, at least in the case of her client, did not respond to requests to speak on the subject. Meanwhile, others identified “bureaucratic inertia”, changing priorities in the US and fallacies in the legal system surrounding the detention camp as probable reasons.
The road to Gitmo
Paracha’s travel to the Guantanamo Bay prison was agonising, long and unplanned, spanning around a year. It began on a summer day in July 2003, when he left Karachi for Thai capital Bangkok to attend a business meeting. He never made it to the meeting.
Nisar A Mujahid, his family attorney in Pakistan, recounted the episode as a “ very dramatic” one.
Mujahid claimed Paracha had been a victim of deception by his American business partner, who had called him to Bangkok for the meeting.
“He (the business partner), for his own interests, manipulated agencies, gave them the wrong information and landed his (Paracha’s) family in trouble,” he said.
However, news reports also say that Paracha’s business partner was purportedly forced by America’s Central Intelligence Agency (CIA) to call him to Bangkok.
Regardless, Mujahid said Paracha was captured by Federal Bureau of Investigation (FBI) personnel at the Bangkok airport and moved to a black site — undisclosed prisons operated by the CIA outside the US, where, according to reports and detainees’ accounts, men held by US authorities are subjected to brutal torture in the name of “enhanced interrogation techniques”.
A year on in 2004, Paracha was eventually moved to the Guantanamo Bay detention camp.
He was the second one from his family to have been captured by US authorities. Earlier that year, the FBI had arrested his eldest son, Uzair Paracha, in New York on the charge of helping suspected militants enter the US through faulty documents.
The suspected militant was Majid Khan, who confessed to being an al Qaeda operative, held at Guantanamo, brutally tortured by the CIA while in custody and completed his sentence last month.
Uzair has denied having any knowledge of Khan’s affiliation with al Qaeda.
Nevertheless, he was convicted of providing support to terrorism and sentenced to 30 years in prison by a federal US court in 2005. This was two years before a federal judge would order a new trial for him, saying that new evidence had surfaced that called his guilt into question. What followed was a deal with the prosecutors who agreed to drop the case in exchange for Uzair relinquishing his status as a permanent US resident.
He was released and sent back to Pakistan after all charges against him were dropped in 2020, midway through his prison sentence.
His father, on the other hand, remains in the custody of US authorities on the basis of accusations similar to Uzair’s.
US authorities accused the senior Paracha of facilitating two alleged 9/11 plotters, Khalid Shaikh Muhammad and his nephew, Ammar al Baluchi, through financial transactions.
For his part, the senior Paracha has admitted to safeguarding around $500,000 for them but maintains that he had no knowledge of them being associated with al Qaeda.
Mujahid, too, insisted that both the Paracha men were innocent. The younger one, he pointed out, had been released, and the older one, he underscored, was never formally charged.
And yet, the senior Paracha continues to languish at the Guantanamo Bay prison for over 17 years.
Birth of a ‘blight’
Paracha was transferred to Guantanamo two years after the prison’s inception, which was rooted in America’s 20-year-long war on terror, launched in the aftermath of the deadly September 11 attacks in 2001.
The prison was established to house suspected terrorists caught in Afghanistan and elsewhere during the war, and its construction, apparently, was a rushed affair.
A report by Britain’s The Guardian recalls: “On January 4, 2002, Brigadier General (retd) Michael Lenhert received an urgent deployment order. He would take a small force of marines and sailors and build a prison camp in the US-run military enclave on Cuba’s South coast, Guantanamo Bay.”
Lenhert had “96 hours to deploy and build the first 100 cells, in time for the first plane-load of captives arriving from the battlefield in Afghanistan on January 11”.
“The job was done on time: a grid of chain-like cages surrounded by barbed wire and six plywood guard towers manned by snipers. There were five windowless huts for interrogation. It was named Camp X-Ray,” the report says.
Lenhert went on to become the first commander of the detention facility, which has housed around 780 prisoners to date.
Years later, after his retirement, he would explain in a guest column for Politico Magazine why operations must cease at the “blight” that he had helped create.
Over the years, from its initial 100 cage-like cells, Gitmo has transformed into a sprawling prison facility, having significantly expanded in size but sitting now largely empty on the Cuban coast.
According to data compiled by The New York Times (NYT), today, only 37 men remain at the prison and 18 of them, including Paracha, have been cleared for release.
Among the rest, just two have been convicted — among whom Majid Khan has completed his sentence but US authorities are yet to reach a deal with another country for his repatriation — and 10 charged with an offence but still awaiting trials. The fate of the rest of the seven detainees remains uncertain as they have neither been charged nor approved for release.
Prisoners have come and gone in the years following the detention camp’s establishment — most were released and some fell prey to death.
According to NYT data, 540 men were transferred from Guantanamo during the presidency of George W Bush. About 200 were transferred during the Obama administration and one during the Trump administration. Thus far, three have been released under incumbent US President Joe Biden.
Then there were nine who found escape from the prison in death.
A January 2022 report, published by the Cost of War — a research project of the US’ Brown University — and shared on the Human Rights Watch website, cites the US military as saying that seven of these nine detainees had died by suicide and two of natural causes.
“The military called three deaths on June 10, 2006 a group suicide, but others have alleged they were homicides. Lawyers and family members of others said they took their own lives in despair over indefinite confinement and abusive conditions,” the report adds.
What’s wrong with Gitmo?
However, the reports of torture and abuse at Gitmo have not been limited to these deaths.
Scores of Gitmo prisoners are said to have been subjected to torture and abuse under the garb of enhanced interrogation techniques — the primary reason behind the detention camp’s notoriety.
The Cost of War report outlines some of these torture techniques as placing the detainees in stress positions, holding them in extended solitary confinement, threatening them with torture and death, siccing attack dogs on them, depriving them of sleep and exposing them for prolonged periods to extreme heat, cold and noise.
Clive Stafford Smith, a human rights lawyer who has represented multiple Guantanamo Bay detainees, when asked about the torture at the detention camp, replied: “Where to begin? They have been tortured, they are abused some more if they do a peaceful protest and go on [a] hunger strike, they are subjected to terrible psychological mistreatment, they have not been allowed to hug their families for 20 years.”
“It would be much shorter to say how their rights have been violated. In truth, they have been violated in every way possible, from abusing them to preventing them from having true legal rights,” he said.
So, as Smith pointed out, the reported torture and abuse is only a part of the injustice meted out to Guantanamo Bay detainees. Another glaring wrong staring these prisoners right in the face is being held in custody without being charged, or even tried before a court.
And several continue to stay at the prison for long even after they are cleared for release.
Paracha among them was approved for release in May last year. Between then and now, almost a year has passed, during which the US authorities have cleared five more inmates for release and transferred one each to Saudi Arabia and Algeria.
But the elderly Paracha continues to stay there, finding himself caught up in a quagmire that defines the legal system — or lack thereof — surrounding the detention camp.
There are military commissions for trying detainees, which legal experts say have largely failed at serving the purpose they were created for; there is a periodic review board, which seems to have somewhat sped up the process of clearing the prisoners for release only after the end of America’s 20-year-long war on terror last year; there are hurdles in the way of filing habeas corpus petitions challenging the detention of the prisoners; and there is probably an abandoned and now shuttered office somewhere at the White House that once dealt with matters pertaining to the prisoners’ repatriation.
During his time at the prison, Paracha has filed multiple petitions pertaining to his detention that have been subsequently denied. He was also assessed multiple times for release only to be disappointed until the periodic review board — a parole-like panel that determines whether the continued detention of an individual at Guantanamo Bay is necessary — concluded last year that he was no longer a “continuing threat” to the US.
When Paracha was notified for release, his lawyer had expressed the hope that he would be released in the next several months. How many? Nobody knows.
A legal black hole
Legal expert Oves Anwar points out that today, most detainees who remain at Guantanamo have almost served an entire life sentence under the US law.
Given the situation, Anwar, who serves as the director of research at the Research Society of International Law, describes Gitmo as “a stain on international justice” and a “black spot in the history of United States’ delivery of justice”.
To elaborate on how the US reached this point, where it is seen denying prisoners at Guantanamo the rights guaranteed under the international law, he goes back to the prison’s origin, dubbing it a consequence of the US going into a “hybrid type of war on terror without thinking things through” and “an ill-thought-out military-led effort to curb terrorism”.
When this happens, he explains, “You get situations where you pick up people from the battlefield and then you don’t know what to do.”
In the words of Lee Wolosky, who served as the special envoy of Guantanamo closure under president Obama, “In large part, the Guantanamo mess is self-inflicted — a result of our own decisions to engage in torture, hold detainees indefinitely without charge, set up dysfunctional military commissions and attempt to avoid oversight by the federal courts.”
The Guantanamo Bay detention camp “and [its] surrounding legal structure had been thrown together hastily in the shadow of a horrific national trauma, with little attention to future legal repercussions”, he wrote in a guest column for Politico in January, on the eve of the 20th anniversary of the detention camp’s opening.
It was a series of measures taken over the years that enabled the US — which has long asserted that it can hold Guantanamo Bay detainees indefinitely without charge — to continue practices at the detention camp that were contrary to the international law of war detention and international human rights laws, conventions and treaties.
These included multiple legislations and executive orders signed by successive US presidents, which hampered the process of delivering justice and fair trial for Gitmo prisoners.
These measures led to the US avoiding compliance with international human rights commitments and even US law itself. And it is said to be one of the reasons why the detention facility was set up outside the US.
“They picked a territory that was not an, [essentially], American territory … and then they tried to deny the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR),” says Anwar.
The ICCPR — a multilateral treaty that commits the states parties to it to respect the civil and political rights of individuals — and a number of other human rights treaties oblige the US to try and charge these detainees or release them.
The US realises this, says Anwar. “This is why the US chose its naval base in Cuba for the construction of the prison camp.”
The US has also insisted that the prisoners are not protected under the Geneva Conventions — a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers during a war. The assertion stems from the US government’s refusal to recognise Guantanamo Bay detainees as prisoners of war (POW) and, instead, define them as enemy combatants.
But, Anwar explains, the Geneva Conventions apply in any context of an armed conflict, which is what the US war in Afghanistan has been.
And a POW, who is any individual caught off a battlefield during a war and belongs to the army of a country, cannot be simply punished for fighting unless they violate the laws of war, such as using prohibited weapons or torturing civilians to death, says Anwar.
“I am not sure whether this (the Geneva Conventions) applies to all the individuals [kept at] Guantanamo, but Taliban fighters, at the time [of the war] should have been accorded the prisoner of war status,” he adds.
Instead, the US came up with “some legal sophistry” during the Bush era and called these prisoners “unlawful combatants”, recalls Anwar. The US rationale, he says, has been that because these individuals did not wear uniforms and for various other reasons, they cannot be given the status of POWs.
And so, the US said it would deny them international human rights law and protection under the Geneva Conventions and the law of armed conflict, he adds. “When the law of war doesn’t apply to you, the human rights law applies … [but] they also denied those.”
“This is why they didn’t take these individuals and shift them off to bases in the US. They picked Guantanamo Bay specifically so that they could make another very poor legal argument, which was that since they (Guantanamo Bay detainees) are not in their territory, they don’t have to give them human rights protections,” says Anwar.
Many international scholars disagree with this argument, he says, but the “US carries a lot of weight when it comes to international law.”
“What more outside the UN, and outside of other such academic forums, can you really argue with them on this?”
Trials before military commissions
When protections mandated for prisoners under the law are ignored and disregarded, what takes shape is an albatross like Guantanamo.
After all, “these protections are there for a reason over centuries in criminal law — without due process, the entire criminal justice system becomes much more likely to hand down wrongful convictions”, says Sarah Belal, who heads non-profit human rights law firm Justice Project Pakistan.
But in Gitmo’s case, it gets worse; convictions have been few and rare, let alone fair, due to scarce trials.
So far, of the approximately 780 detainees that have been interned at the prison, just one has been convicted by a federal court and two under the military commissions system, according to data compiled by the NYT. And of the 37 still at the detention camp, besides the two convicted by military commissions, only 10 are facing a trial under the same system.
But even these trials have been marred by delays.
A prime example in this case is of the five alleged 9/11 plotters, including Khalid Shaikh Muhammad and Ammar al Baluchi — the two men who Paracha has been accused of facilitating.
While the defendants were charged in May 2012, the case is still stuck in the pretrial stage, facing delays after delays.
An NYT report outlined some of the reasons for delays as the coronavirus pandemic cutting off access to Guantanamo Bay, a judge’s abrupt retirement and delays in pretrial work as the defendants are not allowed to contact their lawyers by phone or video link, among other factors.
Primarily, however, it is the military commissions system that lawyers find faulty and the reported torture and abuse of Gitmo prisoners an impediment in the way of delivering justice.
Former president George W. Bush had authorised the formation of the military commissions system in 2001 to try non-citizens captured during the war on terror. The commissions were created by the Congress in 2006 and reformed multiple times.
“Despite subsequent reforms, including those by US Congress, the commissions remained fundamentally broken,” according to the Cost of War report. “Among their flagrant due process violations, the commissions have deprived defence counsels of the means to prepare an effective defence, prevented the accused from seeing all evidence introduced against them, and failed to adequately guarantee that information obtained via torture or ill-treatment not be used against violence,” the reports states.
It further describes the system as one “plagued by recurrent allegations of government interference, including eavesdropping on confidential client-attorney conversations”.
According to Belal, the commissions were set up to allow evidence that would otherwise be inadmissible in courts.
Because getting evidence beyond confession is not a very easy task, says Anwar, it has been difficult for the US government to find evidence against Guantanamo Bay detainees, especially those who were first taken to a black site, such as Paracha, in the battlefield.
Human Rights Watch senior counsel in Asia Division Saroop Ijaz further explains that that when a suspect is detained for years and confessions are extracted through torture, the “evidence usually fails to rise up to the level”.
“They believe that the use of force could lead to the obtaining of a conviction … but this is not right,” he says.
This is where reported torture at Guantanamo and black sites ties up with legal fallacies, delaying and prolonging trials before military commissions.
Alka Pradhan, an American human rights attorney who currently serves as one of the US Department of Defence’s appointed lawyers to represent Guantanamo Bay detainees, explained these hurdles to her audience while speaking at a session organised by Oxford University’s Programme on International Peace and security in 2019.
Pradhan, who represents Baluchi, shared at Oxford that the reason for delays, particularly in the case of the September 11 trial, was the “years of torture” that the suspects were subjected to at the black sites before they were shifted to Guantanamo.
“We are there (military commissions) because the United States wants to put these guys on trial and convict them and eventually execute them. But what it has turned into is sort of a referendum on torture,” she said. “Because the United States has said yes, we want to try them, but we don’t want to give them any of the rights and accountability for what we did to them post 9/11.”
She continued: “So there’s this constant tension where we say okay, well, if you want to put that on trial, you have to first deal with what we did to them … We say, okay, try them, but first give us all the information to defend them properly”, which would include details pertaining to the torture of the suspects.
“That’s why it (the trial) is taking so long.”
Account of a hearing
Besides appearing before military commissions, another means to end the detention at Guantanamo is through habeas corpus petitions.
But there have also been attempts to block these petitions.
In December 2001, months after the inception of Guantanamo Bay detention camp, the US Department of Justice had communicated to the Pentagon that Guantanamo Bay detainees did not qualify to challenge their detentions through habeas corpus pleas as they were not on US soil.
Then in 2005, the Senate had approved an amendment that withheld the detainees’ right to file habeas corpus petitions. And the signing of the Military Commission Act by former president Bush in 2006 barred the US courts from hearing these petitions.
It was not until 2008, when the US Supreme Court gave a landmark ruling in the Boumediene vs Bush and Al Odah vs United States cases allowing habeas corpus petitions challenging Guantanamo detentions, that the hurdle was removed.
Difficulties, however, remain, says Mark Maher, an attorney at legal action non-governmental organisation Reprieve, which has worked extensively for Gitmo prisoners.
“They can be very difficult to win,” says Maher. “Hearsay is always allowed in these proceedings, there is no need for the government to actually provide live testimony [and] there are presumptions in favour of the government’s evidence.”
Moreover, he adds, the proceedings could take very long.
“Some people have had these pending since before 2000, [for] decades at this point.”
This was the case for Paracha, who had filed a habeas corpus petition in 2004.
The first hearing on this petition was held in 2019, more than 15 years after the plea was filed.
In a piece for Dawn, Paracha narrated his disappointment with the entire experience of virtually attending, or rather being kept from attending that hearing.
“The habeas hearing, in federal court in Washington, was like something out of a George Orwell novel,” he wrote. “How else can I describe it? Imagine turning up at your own wedding to find that your bride is marrying someone else — you are banned from the ceremony, and can only listen to the first few minutes through a crack in the door.”
Paracha, who expected to watch the proceedings via a live feed and be able to communicate with his lawyers, said: “Guards took me away, shackled in a van with no windows, to the video room. When we arrived, the camera was not working, so all I had was audio. I could not see them, and they could not see me, but at least I could hear.”
But just 40 minutes into the hearing, he said, he was taken back to his cellblock.
“I so desperately wanted to know what was happening in the court and to take an active part in it. I was well prepared after 15 years. I was confident I could tell my attorneys the facts that they needed about how I was abducted in Thailand and tortured in Afghanistan; and how the allegations against me were made by men being tortured themselves,” he wrote.
“But I could not hear, and I could not respond. It was all secret,” he said, as he went on to share the judgement on his petition.
“It seems that even though I could not attend my own wedding, they were preparing a metaphorical divorce for me. Again, I was not allowed to know what I had done wrong, or what the witnesses said about me — just that I had lost.”
The judge, he said, had delivered a 124-page-long verdict.
“Apparently, it says that I must remain a prisoner here in Guantánamo forever. Why? They cannot tell me. Why? I do not know.”
Paracha’s eventual clearance for release last year has, so far, proved to be only an initial step in a process seemingly longer than anticipated.
JPP’s Belal attributes such delays in release to “bureaucratic inertia”.
Moreover, human rights lawyer Smith describes the periodic review board, the panel responsible for approving prisoners’ releases and comprises members from six agencies, as “entirely political” that is “effective as long as we have someone in the White House who wants to get rid of the prisoners”.
In his piece for Politico, Wolosky discussed in more detail the complications entailing the prisoners’ release while he served as the special envoy for closing the detention facility under Obama.
Briefly elaborating on the process of approvals for releases, he said the first step in the procedure was for the periodic review board to determine whether an individual’s detention was necessary to counter an ongoing threat to the US.
“If all six agencies and departments involved in the review unanimously concluded that it [detention] was not [required], the detainee became ‘approved for transfer’. Then, it was my job to negotiate his repatriation to his country of origin or resettlement to a third country, along with security arrangements and diplomatic assurances intended to maximise the chances for successful reintegration of life outside Guantanamo.”
The negotiations were difficult, he said, adding that while some countries easily agreed to take the detainees, others were “reluctant to even entertain the notion despite having benefited disproportionately from the enormous investment of American blood and treasure since 9/11 to keep us — and them — safe.”
Yet others, he said, wanted “entirely unrelated concessions in exchange for a commitment to resettle detainees”.
Wolosky said, “It was hard enough to convince foreign partners to agree to take in former Guantanamo detainees, [and] at home, the hyper-polarised political environment and myriad legal obstacles made the process even harder”.
There were obstacles such as Congress passing a law during Obama’s first term to prevent the then-president from transferring any Guantanamo Bay detainees to the US for any purpose, Wolosky said, adding that the “Congress’ transfer ban effectively trapped those detainees in Cuba, preventing Obama from closing Guantanamo”.
The transfer process came to a near halt during Donald Trump’s presidency. Only one prisoner was transferred during his tenure, compared to approximately 500 during Bush’s tenure and around 200 during Obama’s. Since Joe Biden took office in 2021, three more prisoners have been transferred and six, including Paracha, approved for release.
But does this necessarily mean that the groundwork is finally being laid for Gitmo’s closure?
Is the end near?
First Obama and then Biden had said upon assuming the role of the US president that they wanted to close down Guantanamo Bay. Obama was unable to do so and it is yet to be seen whether Biden, who wound up the 20-year-long war on terror, will be able to accomplish this.
Between their tenures was the era of Trump, who signed an executive order soon after taking office to keep the detention camp open and said he wanted to fill Guantanamo with “bad dudes”.
Wolosky recalled in Politico his last day as the special envoy for Guatanamo’s closure as Trump succeeded Obama, saying that he knew the office dedicated to closing the prison would be closed soon — and so it did.
He acknowledged that the “legal and policy morass that had developed around Guantanamo meant it could not simply be closed” and that those challenges had not changed.
“But nearly everything else has. The world has moved on from the 9/11 era; even more than during the Obama years, Guantanamo feels today like a relic of another time,” he wrote.
He highlighted that keeping the prison open entailed “reputational and national security costs”.
“The facility and the imagery associated with it incite hatred against the United States and serve as a recruitment tool for terrorists,” Wolosky reasoned.
But, “Trump, of course, didn’t care about any of that. Keeping people at Guantanamo was consistent with his desire to get tough on bad guys — even if some of the bad guys were sick, basically as old as he was and unable to be charged with crimes,” he said, adding that “Trump was leveraging the deep politicisation of Guantanamo that had taken hold long before he became president.”
“From what had once been a largely bipartisan objective to shut down the facility, Guantanamo became a political football, with Republicans intent on frustrating Obama’s presidency wherever they could.”
And then there was what he described as the US national security establishment’s way of “operating on inertia for years or decades”.
“Guantanamo remains open by virtue of that same inertia,” he wrote.
Anwar further points out that Biden has yet to fill the post vacated by Wolosky and “in the US, there is no political will anymore behind anything to do with Afghanistan or Guantanamo. It is just not a priority for them any more.”
Plus, it’s about perception, he adds. “It also looks bad for whichever administration actually finally closes it down,” with some quarters saying that they are being “soft on terror”.
But, Anwar says, there have been reports of construction of new courtrooms at Guantanamo, which could mean that the Biden administration intends to conduct trials.
He also terms the recent approval for releases a “positive sign”.
But “will they (US authorities) have enough political and diplomatic will to get countries to accept these citizens?” That, he says, remains to be seen.
Reprieve’s Maher says that his clients remain hopeful that Biden will close the prison.
“There are certain things within the Biden administration’s short history, so far, that show President Biden is willing to make difficult choices,” he adds, “Having said that,, I know there are difficult questions for the administration to ask when it comes to Guantanamo and hope that they are devoted to actually completing the promise that has been made to these men over and over again.”
The way for the Biden administration to move forward responsibly, suggests Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, is to swiftly transfer prisoners who have not been charged with crimes to a third country, for the government to stop opposing federal court habeas petitions that will allow for court ordered transfers.
“And if the government has enough evidence that is untainted by torture to prosecute people, including those who are facing death penalties in military commissions, it should pursue plea agreements that will allow justice to be done,” she says.
“President Biden promised to close Guantanamo and he needs to follow through on his pledge … and it needs to happen expeditiously.”
And if it does not happen, a possible scenario pictured by Paracha in his piece for Dawn might actually come true for him.
The septuagenarian, who is diabetic and has suffered three heart attacks in detention, wrote: “I feel that we are already buried at Guantanamo, and that is the end of it. After we stop breathing, they will put us in a grave or the sea.”