Karen J. Greenberg
Bald, bespectacled, and bearded—the image of a beaming Saifullah Paracha sitting at a table at McDonald’s in Karachi, Pakistan, appeared on New York Times reporter Carol Rosenberg’s Twitter on the morning of Oct. 29, 2022. At 75 years of age, Guantanamo’s oldest prisoner had just been released from the island prison camp where he had spent 17 years in detention without ever being charged. Guantanamo’s Periodic Review Board, created to make determinations about further detention or release of prisoners, had ruled a year and a half prior that detainee #1094’s “continued law of war detention is no longer necessary to protect against a continuing significant threat to the security of the United States.”
Without fanfare, the father of four was flown to Karachi, Pakistan. A one-time businessman, formerly suspected of aiding al-Qaeda, Saifullah was finally home. He had been dreaming of release for years, writing in 2005, “I am an old man of 58+ years, My Cardiac, Diaretic, Blood Pressures, Skin Disorder, Urinating Difficulties & Ulser, I am on constant medication, but my biggest disease is I am home sick.”
It was the final piece of a story that involved both Saifullah and his son Uzair (for the sake of clarity, this article will refer to the Parachas by their first names), a story of parallel systems for assessing guilt and innocence: one in the federal courts, honoring tradition and the law, and one in Guantanamo, creating its own framework anew, outside accepted norms and laws. This story of father and son shared an ending. Both men ended up heading home, released from U.S. captivity and prison, neither ultimately convicted.
Until the opening of Guantanamo in January 2002, individuals charged with international terrorism-related crimes had been prosecuted regularly in U.S. federal courts. In the decade leading up to the attacks of Sept. 11, 2001, several noteworthy international terrorism suspects were convicted on charges related to the bombing of U.S. property and the killing of U.S. persons, among them those convicted in the 1993 bombing of the World Trade Center.
The military commissions at Guantanamo were created to sidestep protections and regulations fundamental to the federal system. Evidentiary standards, rules of hearsay, and defense teams’ access to evidence were relaxed. One example is the use of evidence obtained through torture, a practice prohibited by federal and international law, as well as U.S. policy.
As a result, since the creation of the military commissions, there have been two parallel systems for trying terrorism suspects in U.S. custody—one that abided by long-standing law and custom and one based on the premise that those standards could, and needed to be, pushed aside. Yet, as the cases of Saifullah and Uzair Paracha illustrate vividly, these two systems were never as separate as originally intended.
As Guantanamo inches toward closure, the Parachas’ stories tell us much about the contradictions of U.S. policy during the global war on terror, contradictions that became ever clearer as the two systems found themselves inextricably entwined.
Saifullah’s story is in some ways typical of many of the 736 individuals released from Guantanamo as of the end of 2022. The prison was authorized by a November 2001 military order. It opened in January 2002, intended to be beyond the reach of U.S, international, and military law. In contrast to the long-standing tradition of using federal courts to try terrorism suspects, Guantanamo’s mandate was to detain for eventual trial by military commissions terrorism suspects apprehended in the war on terror. As there was no military commissions system in place at the time, the efforts for this new system have stumbled along since the beginning, even after the passage in 2006 of the Military Commissions Act and its successor, the 2009 Military Commissions Act. Creating policy and procedures in real time, continually striving to create new norms, the commissions have prosecuted only nine prisoners, convicting all of them, although four of those convictions have been overturned in part or in whole, while two others remain on appeal. Originally on the list of those referred for prosecution in the commissions, Saifullah was eventually removed from that list and, like the vast majority of detainees, was left to seek release through either review boards at Gitmo or habeas corpus petitions filed in federal court.
In other ways, Saifullah’s story is unique, starting with the fact that during the years he waited for release from Gitmo, his son Uzair was serving a 30-year sentence—initially in Colorado’s ADX Florence prison and later in Terre Haute, Indiana, having been convicted on five counts of terrorism-related crimes. Uzair, like his father, is now back in Pakistan, after he was granted a new trial and the charges against him were ultimately dismissed.
From start to finish, the case of the father and that of the son are intertwined—and so are the separate systems in which they were held. Their story undercuts the notion that Guantanamo was or ever could be a legal system separate and apart from the laws and the institutions designed to protect those laws—the U.S. federal courts.
Both stories begin with the activities of the father. In a January 2020 ruling denying Saifullah’s habeas petition, D.C. District Court Judge Paul Friedman called the elder Paracha “No ordinary Pakistani.” Friedman continued, “In his education, his cosmopolitan world-view, his consumption of western news media, his political connections and his resources, Mr. Paracha was unusual.” He had come to the United States in 1974 on a student visa, had graduated from the New York Institute of Technology, held a permanent resident visa, and traveled frequently between Pakistan and the United States. Saifullah owned several businesses, buying one—a travel agency—as early as 1974 during his time as a student—and eventually owning others, including a media company, an import-export business for garments and other merchandise that catered to giant retail companies such as Walmart and K-Mart, and a real estate business.
Saifullah’s activities defy easy categorization. Though a practicing Muslim, he sent his children to Catholic schools in Pakistan, and Uzair attended a Montessori school in Brooklyn, New York. Beginning in 1993, he partnered with a New York businessman, Charles Anteby, described by Saifullah as a “White-American from Jewish community[.]” Alongside his business interests, Saifullah engaged in charitable work. He was chairman of the board of the Council of Welfare Organizations, a charity devoted to promoting “Education, Health and Justice.” He had an avowed active interest in helping rebuild Afghanistan after the war with Russia. As part of this mission, he had approached the Taliban with a plan to establish “a school for the education of females,” a goal decidedly at odds with the Taliban’s policies toward women.
Saifullah’s charitable interests in Afghanistan included an impassioned call to the United States for help. In May 2001, Saifullah wrote hundreds of letters to members of Congress, and in a l4-page letter to “President W. Bush (Sr,),” the “Ex-President,” he described the horrendous conditions in Afghanistan owing to the war with Russia and sought U.S. help for restoring stability in the country.
In July 2003, the FBI lured Saifullah to Thailand in a sting operation, ostensibly for a business deal. He never made it to the meeting. U.S. law enforcement apprehended him at the Bangkok airport. According to his testimony, he was hooded, shackled, blindfolded and cuffed, and after a few days in custody was transferred
Counterterrorism officials alleged that Saifullah had ties to several terrorism suspects. They discovered this in part through information provided by top members of al-Qaeda in U.S. custody. They also gleaned it from information provided by Uzair, who had been apprehended by U.S. authorities prior to his father’s capture. As Judge Friedman would later note, “Uzair Paracha provided substantial information, independent of the statements extracted from [Khalid Sheikh Mohammed], [Ammar] Al-Baluchi, and [Majid] Khan, that linked Saifullah Paracha to Al-Qaeda. On the basis of the information gathered from the Al-Qaeda sources and Uzair Paracha, the United States decided to apprehend Saifullah Paracha in 2003.” From the start, the separation between the cases, and their legal contexts, was blurred.
Saifullah had drawn the attention of counterterrorism officials for his contacts with individuals considered close to al-Qaeda and its leadership. He met with Osama bin Laden twice, both before and after the attacks of 9/11. Of particular concern also were meetings Saifullah had after 9/11 with Khalid Sheikh Mohammed (KSM) and with Ammar al-Baluchi, both of whom are now charged in the Gitmo military commissions with participation in the 9/11 plot. Saifullah’s associates also included Majid Khan, who pleaded guilty in 2012 in the Guantanamo military commissions to transferring funds for the 2003 Jakarta hotel bombings by an al-Qaeda affiliate. In 2022, the convening authority at Guantanamo reduced Khan’s original 26-year sentence to 10 years as part of a cooperation agreement, clearing him for release as of March 1. At Guantanamo, being cleared for release does not mean actual release, a reality that many have come to accept but that, even nearly 21 years later, highlights the lack of legal clarity and normalcy there. Khan today awaits transfer.
Given the suspicions about Saifullah’s ties with al-Qaeda leaders, it is surprising that he was not taken to a CIA black site. Nor was he sent directly to Guantanamo, as were the hundreds who were apprehended in countries around the world between 2002 and 2005. Nor was he brought to the United States, where the major crime he was accused of plotting had occurred, and where his son was already being prosecuted in federal court. He was instead flown to a prison at Bagram Air Base in Afghanistan, which had been set up in late 2001 to house prisoners captured in the war on terror. Saifullah remained there for over a year, questioned repeatedly. He considered this to be the worst part of his 19-year ordeal in terms of the conditions of his detention, according to his first lawyer G.T. Hunt, who a few years later was joined by David Remes and William Livingston, and who steadfastly worked as counsel both at Guantanamo and in the federal courts. In September 2004, Saifullah was transferred to Guantanamo.
The accusations against Saifullah went beyond initial suspicions and included providing financial, military, and logistical assistance to al-Qaeda and, more specifically, providing support for Majid Khan to conduct attacks in the United States.
Saifullah’s defense was that whatever his relations with the individuals in question, they were matters of business, not politics. He argued that he was not aware that Baluchi, who used the name Mustafa, or Majid Khan, who used the name Adnan, were members of al-Qaeda. In addition, Saifullah repeatedly stated that he didn’t share al-Qaeda’s views, that he had never intended to provide substantial assistance to hostilities against the United States, and that he harbored no animosity toward the United States. He insisted he was not a man of violence and that the United States did not have the legal authority to detain him.
Neither the federal courts nor the authorities at Guantanamo were persuaded by Saifullah’s arguments. Denying his release—despite attorney Remes’s argument before the Periodic Review Board in March 2016 that his client had been a “model detainee,” favored by guards, officials, and other detainees alike for his role at the prison—the review board noted, in explanation for the denial, the “detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.”
Likewise, Saifullah’s plea for release fell flat before Judge Friedman, who concluded that “Mr. Paracha has rendered substantial support to Al-Qaeda and the Taliban.” Saifullah’s habeas petition, first filed in 2005, was denied 15 years later in January 2020. Throughout the habeas ruling, Friedman, invoked the porous barrier between Guantanamo and the federal courts, referencing the statements of the son, Uzair, who had been taken into custody in March 2003, several months before Saifullah was apprehended, and whose comments during an initial interrogation he cited as essential factors in his ruling.
The overlap between decisions at Guantanamo and proceedings in federal court had already been apparent in the run-up to Saifullah’s capture. On March 28, 2003, the Joint Terrorism Task Force (JTTF) in New York City—one of many FBI-led interagency investigative counterterrorism units that worked with local law enforcement across the country—had removed then 23-year-old Uzair from his office and taken him into custody for interrogation. For three days, agents interviewed him. He was strip-searched. His phone was taken from him. He was not given access to a lawyer. He was questioned until 4 a.m. the first night, staying at a Best Western for two nights and an Embassy Suites for one night, given pizza too stale to eat one day and Chinese food later. The agents did read Uzair his Miranda rights on the second day of questioning, but when Uzair asked for a lawyer, he was told that, if one were provided, he would be “arrested and taken to jail.” Uzair withdrew the request and the interview continued.
At the center of the hotel interview was a scheme in which both the father and the son had participated. Baluchi and KSM had approached Saifullah seeking help with Majid Khan’s immigration status. Khan needed to renew his U.S. travel documents, which had expired. Saifullah asked Uzair—who was in Pakistan at the time but who was scheduled to travel to the U.S. for business purposes—to help “a fellow Pakistani [M]uslim.” Early in 2003, father and son had met with Baluchi and with Khan at Snoopy’s Ice Cream Parlor in Karachi. Khan asked Uzair to help renew his passport by posing as Khan in the U.S. and by, among other things, contacting the Immigration and Naturalization Service (INS) to find out Khan’s immigration status, and using Khan’s credit cards in the U.S. A search of the house where Uzair was staying, belonging to his aunt and uncle, turned up documents in Khan’s name, including Khan’s driver’s license, his Social Security card, a bank card, and his health card.
Once the JTTF interview was concluded, Uzair was formally charged, indicted on five terrorism-related charges. Central to the indictment were the accusations about Saifullah’s contacts with al-Qaeda members and his complicity in the scheme to help Khan, whom authorities claimed was an al-Qaeda operative intending to illegally gain a foothold in the U.S. for the purpose of conducting a terrorist attack by bombing underground storage tanks at gas stations in Maryland. By the time Uzair was arrested, Khan, along with KSM, was in U.S. custody at a CIA black site. Baluchi would be captured the following month. From the onset of the case against Uzair, its relevance to any military commissions charges against his father was of interest.
Uzair was reportedly offered a plea deal in 2003, which he turned down.
In November 2005, Uzair’s jury trial before Judge Sidney Stein in the Southern District of New York began. The trial lasted two weeks. In yet further overlap between the federal courts and the off-shore activities of the U.S. government in matters of detention and interrogation, Uzair’s lawyers requested and received portions of statements made by Khan, Baluchi, and KSM during interrogations that included “enhanced interrogation techniques” at black sites. A 2003 ruling by the U.S. Court of Appeals for the Fourth Circuit in U.S. v. Moussaoui had held that defendants could use at trial exculpatory statements made by those in U.S. custody to whom the U.S. had denied the defense access.
Accordingly, Uzair’s lawyers proceeded to ask for information provided to the government about their client. The district court agreed to accept “unclassified summaries of statements” made by Khan, Baluchi, and KSM. The summaries were in fact introduced at trial but were muddled and consequentially indeterminate as to the role either of the Parachas had played in any al-Qaeda scheme.
The centerpiece of the trial became Uzair’s statements during his weekend-long interview by the JTTF. The prosecution had several aims, and not one, but two persons of interest—Uzair and his father, Saifullah. They wanted, first, to show that Uzair had initially lied during the JTTF interview, later changing his story, and, second, to prove that Uzair, as well as his father, knew that Baluchi and Khan were members of al-Qaeda, and that in assisting Khan they were knowingly assisting a terrorist to come to the United States, potentially to commit an act of terror—knowledge potentially crucial for progress in the military commissions.
Uzair chose to take the stand in his own defense, a decision rare for a defendant and even more rare for a terrorism defendant. Over an entire day and part of a morning in November 2005, the prosecution pointed to the discrepancies between what Uzair originally told his interviewers during his hotel interviews and what he eventually told them over the course of the three days as well as in a declaration he made and signed prior to the trial. When asked about these discrepancies and “false statements to the FBI in March 2003,” Uzair answered, “Because I was scared. And I wanted to go home. And every time I told them the truth, they told me I was lying and if I continued to be uncooperative, then I wouldn’t be able to go home. So I told them what I thought they wanted to hear.”
On the stand, Uzair admitted to taking some steps to help Khan. He had done a computer search to check Khan’s status, had called the INS twice without success, and had possession of the identification found in the search of his house. But there was very little to substantiate the repeated attempts by the prosecution to argue he had knowingly supported al-Qaeda. Prosecutors repeatedly referred to the discrepancy between Uzair’s initial statements in the JTTF interrogation in which he denied any knowledge of the terrorist group and his 4 a.m. admission that he knew that Khan and Baluchi were members of al-Qaeda. “[F]ear, intimidation, and exhaustion,” Uzair now told the jury, had led to his change of story; he had “panicked.”
Q. During that weekend, you told [the JTTF] that you knew that Majid Khan and Ammar al Baluchi were—whom you knew as Mustafa—were members of al Qaeda; isn’t that correct?
A. Yes, I did.
Q. And now are you are saying that you did that because they pressured you to say it; correct?
A. Yes, sir.
Q. [D]o you share al Qaeda’s goals?
A. I do not.
But the prosecution was keenly and persistently interested in establishing more than facts about the son. Prosecutors were intent on eliciting facts about the father held at Guantanamo. “[Y]ou said [during our three-day interview] that you would not be surprised if your father would be involved in some sort of terrorist operation, correct?” “Yes,” the son answered on the stand. “And you said you would not be surprised, correct?” “That’s true,” Uzair answered.
The prosecution pushed on.
“And then the agents asked you whether your father, Saifullah Paracha, was affiliated with al-Qaeda, didn’t they?”
“Yes,” the son answered.
“And you told the agents that you suspected that he was, correct?”
“Correct.”
The testimony was damaging for Uzair. His claims that he panicked under questioning, and that he had made things up to satisfy the agents so they would release him, were ignored. The jury deliberated for less than a day and found Uzair guilty. He was sentenced to 30 years in prison. The conviction was appealed and affirmed in 2008.
Meanwhile, the statements were damaging for Saifullah as well. Subsequent review boards at Gitmo, as well as several denials of habeas corpus, repeatedly referenced the son’s admissions under questioning about the father’s ties to al-Qaeda. In particular, Uzair’s statements that the father knew that KSM and Baluchi and Khan were al-Qaeda agents and respected them were mentioned over and over again.
Then, several years after Uzair’s conviction, the connections between Uzair’s case in federal court and the proceedings at Guantanamo came to the fore once again, adding a new twist to the story.
In 2008, Saifullah’s appellate lawyer, Joshua Dratel, received information from the prosecution regarding events at Guantanamo. Redacted interviews with law enforcement agents who had interrogated KSM, Khan, Baluchi, and others when they arrived at Guantanamo, and at subsequent review panels, cast new light on the case of the Parachas.
The back and forth between Gitmo and the U.S. courts had suddenly taken a new turn—rather than serve as evidence against a defendant, it seemed that evidence from Guantanamo could possibly also provide evidence pointing to innocence. Accordingly, later in 2008, Dratel filed a motion for a new trial based on the new evidence from Guantanamo. Once again the two cases, and the two legal systems, were bound up together.
The new evidence undermined the basis of Uzair’s conviction in several ways, according to Judge Stein’s review of the information. First, the Guantanamo detainees asserted directly that Uzair was not guilty. Khan said, “Uzair Paracha is innocent; he is not a criminal” and he had “never told [Paracha] that I was al Qaeda[.]” Importantly, KSM, who had “openly confessed his responsibility for dozens of heinous crimes and terrorist plots” and named numerous terrorist associates, had not mentioned the Parachas. Neither had Baluchi.
Further, the new evidence suggested that neither Baluchi nor Khan were members of al-Qaeda. And if that were the case, the judge reasoned, then “Uzair would be able to argue on retrial not only that he never knowingly aided the terrorist group, but that he never aided al-Qaeda at all.” All told, the judge concluded, a new trial with this new information “would probably result in an acquittal.” He overturned the conviction. Convinced that “a serious miscarriage of justice may have occurred,” Stein ordered a new trial for Uzair.
But there was to be no such trial. In late 2019, as the date set for the trial approached, prosecutors decided not to pursue a second trial. They moved to dismiss in early 2020, citing the lengthy time it would take to review the 14,000 classified documents required “without diverting substantial resources from other important national-security and law-enforcement functions.”
While the statements from Uzair had previously formed the basis for the capture and questioning of Saifullah, now the information from Guantanamo had proved dispositive in dismissing the federal case against Uzair.
In theory, the detention of Saifullah could have been affected by the exoneration of the son. After all, the information unearthed in the newly released Gitmo documents—and Judge Stein’s ruling in the wake of those documents—essentially disproved Judge Friedman’s finding that “Uzair Paracha’s pretrial statements are generally reliable,” and as such were part of the evidence underlying the denial of habeas. But the father’s future would not, it turned out, require further litigation. On May 13, 2021, Saifullah was cleared for release from Guantanamo, like nearly all of those initially held in indefinite detention without charge. Nineteen months later, he was finally home.
The story of Saifullah and Uzair Paracha has a deeply ironic moral. It wasn’t only that the system created at Guantanamo to be separate and apart from the federal courts turned out to be intimately and inseparably tied to the federal judicial system—and, as such, eventually a means to justice in the case of Uzair. It was also that the distinction between the two different systems—one of indefinite detention, stalled military commissions, and a willingness to operate outside long-standing legal precedent and the rule of law, and one the system of legal precedent and procedure that had defined the country from its inception—was blurred by the interdependence of the two systems and further by the fact that the resolution in both was ultimately the same. Yes, the federal court system eventually righted a wrong, as the appellate process is designed to do. Nonetheless, the path to resolution, at home and at Guantanamo, and in the mingling of the two systems, was unnecessarily tainted by the general—and harmful—disregard for laws and norms in the name of national security.
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