In 2008, I had been fortunate enough to meet with the family of Gul Rehman in Peshawar as I was conducting investigations into enforced disappearances. At the time I had been informed by his family he had gone missing after having been accidentally picked up in 2002 in Islamabad from the home of Dr. Ghairat Baheer, the son-in-law of Gulbuddin Hekmatyar. All the men in that home had been transferred to prisons in Afghanistan, with Baheer having been released three years later. The family wondered why their son/brother/father had still not been released in 2008, despite Baheer having been so many years earlier.
On returning to the UK, I followed up with colleagues from the ICRC (International Committee of the Red Cross) to inquire why Gul Rehman had not been registered on any prison lists. At CagePrisoners we had been documenting the names of those detained in US custody in detention centres such as Bagram and Guantanamo Bay, so to find that there was no mention of this unimportant former driver was particularly worrying.
It was not until 28 March 2010, that the world learnt of Gul Rehman's fate. On 20 November 2002, he had died in US custody after only one month in detention. According to the Associated Press (AP) investigation, he died from being left half naked in the cold, after being subjected to continual bouts of freezing temperatures.
At that time, I called to pass on my condolences to the family, only to be informed that they knew nothing of this news or the AP investigation. It turned out that no one had bothered to inform the family that Gul Rehman had died in custody, let alone return his body for them to be able to perform the funeral rites.
In 2008 an inquiry was launched following allegations that the CIA had tortured rendition victims Khalid Sheikh Mohammed and Abu Zubaydah with the use of waterboarding in secret prisons and destroyed videotape evidence of those interrogations to safeguard the identities of the agents involved and, after the release of an internal CIA report which revealed that interrogators had threatened to kill and sexually assault members of prisoners’ families – a practice routinely carried out in pre-revolution Arab states and currently in places like Syria.
Federal prosecutor John Durham then submitted that a full criminal investigation into the deaths of two men – Gul Rehman and Madadel al-Jamedi (who died in CIA custody in Abu Ghraib) – be pursued, despite President Obama’s post (and pre)-inaugural promise of immunity from prosecution for any Bush-era CIA agents accused of breaking the rules whilst fighting terrorism.
Not surprisingly, Durham's inquiry concluded that there was not enough evidence to push for the prosecution of individuals in such cases, so no criminal charges would be brought against those who had been involved in the killing.
A statement released by US Attorney General, Eric Holder, gave weight to these findings,
"Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt."
Thus, according to the Department of Justice, despite there being a well established factual narrative of the murder of Gul Rehman, no charges would be brought against any individuals, thereby whitewashing any wrongdoing involved in the case.
While Eric Holder may be satisfied with the outcome of this investigation, he was very wrong when he said, "I continue to believe that our Nation will be better for it". Such half-hearted attempts at the apparent administration of justice only serve to highlight a hypocrisy endemic within the US justice system, where serious crimes and violations of the laws of war are either whitewashed completely, or result in severely disproportionate under-sentencing when it comes to holding authority to account. This is particularly relevant when juxtaposed with sentences given to Muslims within the federal justice system, such as Aafia Siddiqui who was given an 86-year sentence, despite not having harmed even one individual in an alleged shooting incident.
A maxim of the law states that the law must not just be done, but it must be seen to be done - what people like John Durham and Eric Holder do no understand, is that the US justice system is not seeing with the same eyes as the rest of the world.