Khawaja’s petition blocks extradition of Mullah Baradar, Quetta Shura leaders

Today, the Lahore High Court has blocked the extradition of Mullah Abdul Ghani Baradar, the Afghan Taliban’s second in command; Maulvi Abdul Kabir, the leader of the Peshawar Regional Military Shura; Mullah Abdul Salam, the shadow governor of Kunduz; Mullah Mir Mohammed, the shadow governor of Baghlan province; and Mohammed Younis, the former shadow governor of Zabul province. The five top Taliban leaders were detained over the past two months, reportedly by Pakistan’s Inter-Services Intelligence Agency and the CIA.

The Lahore High Court ruled to block their extradition after pro-Taliban and al Qaeda lawyer Khalid Khawaja filed a petition with the court. The full text of Khawaja’s petition, which was emailed to The Long War Journal, is below:

Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to direct the respondents to treat Mullah Abdul Ghani Brader, Mullah Abdul Salam, Maulvi Kabeer, Mullah Muhammad and Ameer Muawiyia, the detenus/in case if accused, in accordance with law in the interest of justice, equity and conscience

Respectfully submitted:

1. That the petitioner is Muslim citizen of Pakistan and is a Chief Coordinator, Defense Human rights Commission and is entitled to file this petition.

2. That it was reported that, in a joint US-Pakistani raid, Pakistani officials have officially confirmed the capture of five Taliban leaders, namely

(1) Mullah Abdul Ghani Brader, the Afghan Taliban’s senior military commander and trusted friend of Mullah Omar, the Taliban leader,

(2) Mullah Abdul Salam, the Taliban’s unofficial Political Chief in Kunduz, acting also as the group’s senior Military Commander over a large portion of Northern Afghanistan

(3) Maulvi Kabeer, the Governor of Nangahar Province East of Kabul during the Taliban regime,

(4) Mullah Muhammad of Baghlan and

(5) Ameer Muawiyia, described as the Taliban’s Liaison Officer for al-Qaeda militants based in Pakistan’s tribal areas close to the Afghan border.

1. That Major General Athar Abbas, the chief spokesman of Pakistan’s Army, announced Mullah Brader’s capture on Wednesday, a day after US media reported that he had been surrounded several days ago; the arrest of Mullah Brader had been later confirmed by Abbas said in a written message to reporters and thereafter the others above named are reported to have also been arrested.

2. That it was further reported that they were being interrogated by US and Pakistani intelligence agents, but the place of arrest and operational details was not released due to security reasons.

3. That speaking to Al Jazeera TV Channel, Hamid Gul, the former Head of Pakistan’s Inter-Services Intelligence (ISI), said that the fact that the arrest had reportedly been made during a joint operation by US and Pakistani agents was “unusual”. He added:

“This is rather unusual, one of the top leaders of the Taliban leaders being caught here and that it was reported, that this was a joint operation between the US and Pakistan intelligence, was unprecedented.”

But Pakistan’s government denied it was working alongside US intelligence services. Rehman Malik, the Pakistani interior minister, called those reports “propaganda”. he said on Pakistani television.”We are a sovereign state, and hence we will not allow anyone else to come and do any operation,”

In response to his statement it was commented that Pakistan is a sovereign state in name only and at every stage US Military Intelligence dictates Pakistan’s every move.

4. That the comments are true as it was said by Richard Holbrooke, the US envoy to Afghanistan and Pakistan, welcoming Mullah Brader’s arrest, calling it a “significant development”. He said “There is very little I am going to say here on this subject but it is a significant development,” the AFP news agency cited Holbrooke as saying on Wednesday, in the first apparent official US confirmation of the arrest.

“I am not going to join any speculation. I am not in a position to share, this is an intelligence matter but we commend the Pakistanis to join us in this role and it is part of the deepening co-operation between us.”

Mullah Bradar is believed to have been in day-to-day command of the group’s leadership council, the so-called Quetta Shura, ever since the group’s founder and leader, Mullah Mohammed Omar, disappeared from view in the aftermath of September, 11 attacks in 2001.

Al Jazeera’s Zeina Khod, reporting from the Afghan capital, Kabul, said, Mullah Brader’s capture marked a significant step. They say, “Mullah Brader would be a very good source, concerning information about the Taliban leadership, simply because as far as we know, he has a very good relationship with Mullah Omar, and their relationship goes back to the days when the Taliban were really in power”.

“Mullah Brader was a man in charge of military operations who was given the opportunity to make decisions. The ultimate decisions were made by Mullah Omar, but Mullah Brader really played an important role.”

5. That then it was further confirmed by CBS News’ Sami Yousafzai that Abdul Salam had been arrested, saying he was apprehended by Pakistani forces while traveling to meet his boss, Mullah Baradar; the three other Key Taliban Leaders, namely Maulvi Kabeer, Mullah Muhammad of Baghlan and Ameer Muawiyia, the Taliban’s Liaison Officer were arrested. Yousafzai reported that Abudl Salam was far more than the Taliban’s unofficial Political Chief in Kunduz, acting also as the group’s senior military commander over a large portion of northern Afghanistan. He was atop the German NATO contingent’s most wanted list, according to Yousafzai. German troops make up the largest NATO presence in the region.

6. That, as reported by CBS News senior national security correspondent David Martin, their capture suggests the Pakistani intelligence services are ready to deny Afghan militant leaders a safe haven in Pakistan – something critics have long accused them of doing and the arrest of Afghan leaders is further evidence of major shift in Pakistan’s policy as a U.S. ally in the war against Islamic extremists. Officials referred to Baradar as the linchpin of Taliban strategy in Afghanistan. Haroun Mir, a leading Afghan expert on the Taliban, tells CBS News Baradar’s arrest is “the most important event in the war against the Taliban and the war on terrorism in years.”

U.S. and Afghan leaders have been criticizing Pakistan for years for allowing the Taliban to move freely between Afghanistan and Pakistan, and now, by arresting Mullah Baradar and other afghan leaders, they demonstrated in the strongest way a change in policy.

7. That it was reported by Dean Nelson and Javed Siddiq in Islamabad Published on February 18, 2010 that Military sources said the five senior leaders arrested were members of the so-called ‘Quetta Shura,’ the Taliban’s Leadership Council and President Obama’s regional envoy, Richard Holbrooke spoke of his joy at hearing “good news after a long time of bad news” and praised the new level of co-operation between Pakistan and America. Those arrested were close aides of Taliban leader Mullah Omar. “I don’t want to use the term ‘Quetta Shura’ because some people in Pakistan don’t like it, but these people arrested belong to the supreme command of the Taliban,” he remarked.

3. The detention of the six persons mentioned above is without lawful authority, in an unlawful manner and of no legal effect; no other remedy is available to the petitioner for the redress of the grievance of detenus/accused, hence this petition under the following amongst other grounds:

GROUNDS

1. From the facts mentioned above, reported in different newspapers, news agencies and internet, it is disclosed that the five Afghan Muslim leaders had been arrested from different parts of Pakistan, but they have not been produced before any competent court of law as envisaged in Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, nor the grounds of their detention have been provided to them, nor they have been provided opportunity of engaging any counsel of their own choice. The detention of the aforesaid persons is against law of the land as under Article 4 of the Constitution it is an inalienable right of every person to be treated in accordance with law, their detention is in an unlawful manner and without lawful authority under Articles 10 and 11 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The safeguards under Article 10 and 11 of the Constitution are guaranteed not only to the citizens, but also to every person and in case any person is detained while he is in Pakistan, he shall be dealt with under law of the land and no matter they are Afghani nationals, Pakistan laws will be applicable to them; they will be entitled to the fundamental laws guaranteed to them by the Constitution as mentioned hereinabove and the trial, if accused of any offence, will be conducted by the competent courts of Pakistan, hence raid by the US agencies and investigation by them is against the provisions of Constitution and humiliation of the sovereignty of the state.

3. The interference of America and their intelligence agencies is external intervention and is in contravention of the International Right of Independence of the state under the United Nations Charter and investigation by the foreign diplomats is against law, integrity and sovereignty of Pakistan.

4. The detention without due process of law for an ulterior purpose and not because the detaining authority is satisfied that it is necessary to detain the intended detenus with a view to preventing them from acting prejudicially to certain acts is void; the detention intended to help the police in obtaining evidence in the investigation of any crime is also against law unless they are accused of any offence or if detained under any preventive detention enactment, the satisfaction of the authority and the grounds thereof must be provided whereas it appears that the detention of all the 5 persons is executive vagary and highhanded action.

5. The detenus/accused if charged of any offence, have been arrested and detained in some secret place where there is no access of anybody or the legal practitioners/advocates to assist them in their case and is thus in violation of Article 10 and 11 of the Constitution and rule of law.

6. The detenus, or accused, if charged of any offence, had been arrested in an unlawful manner on 16.02.2010 and as required by Article 10 of the Constitution, they had to be produced before the Magistrate within 24 hours of such arrest which has not been complied and thus the detention is illegal and without lawful authority and/or the grounds of detention had to be provided to them, the constitutional obligation has thus not been fulfilled by the respondents and they are therefore they have disobeyed the Constitution and are liable under Article 5 of the Constitution.

7. It is in the interest of sovereignty of Pakistan that the detenus/accused if so, be investigated by the authorities of Pakistan as until any offence is proved against them, they are presumed to be innocent; they being party in the Taliban Government and having some governing position in the Government may not be considered to be offenders. It is an un-rebuttable truth that America can never be the friend of Muslims or any Muslim State, rather the object of American policy in view of its ‘New World Order’ is to rule over the whole world and to achieve their perspectives/purpose they have a complete plan to overcome Muslims, they are patronizing the Lashkar-e-Tayyaba, now Jamat-ud-Daawat in Afghanistan, the members of which are highly paid by the America and Blackwater in lieu of which they are spying against the Muslims of Pakistan and Afghanistan, selling muslims and are assisting America to achieve their objectives, but pretend to be Taliban. Thus they are patronizing the terrorists against Islam. It is, therefore, in the interest of the integrity and sovereignty of the State that the respondents should interrogate/investigate themselves. Various books have been written on it, e.g. ‘Tareekh Kala Pani Se Gawantanamo Tak’, by Moman Khan and Blackwater by Maulana Umar Asim (pages139-143) wherein the activities of Jamat-ud-Daawat has been mentioned in detail. Whereas all the five persons detained belong to Mullah Omar, no doubt, but their only guilt is that they had established Nizam-e- Islam in Afghanistan in its true spirit, nevertheless, the propaganda against them is/was false. If, otherwise, too, they have any ulterior objectives, let the law and evidence prove it before our courts which are mashaallah now independent as compared to the American courts; Dr. Afia case has proved it. It is, therefore, in the interest of sovereignty of Pakistan that their investigation and interrogation be conducted by the intelligence agencies and the Police of Pakistan and thus their trial proceedings be held in the courts of Pakistan under law of the land so that their secrets may be disclosed.

It is, therefore, respectfully prayed that this Hon. Court may very graciously be pleased to direct the respondents to:

1. produce the detenus/accused, namely Mullah Abdul Ghani Brader, Mullah Abdul Salam, Maulvi Kabeer, Mullah Muhammad, Ameer Muawiyia and any other person arrested with them, before this Hon. Court and if there is no criminal charge against them or are no reasonable grounds of their detention, the respondents be directed to release them forthwith,

2. conduct investigation independently without the interference of F.B.I. or any other foreign intelligence agency,

3. restrain the American officials or their investigating agencies like F.B.I. not to interfere into the affairs of Pakistan as such acts are not permitted by law of the land and are against the sovereignty of Pakistan and violation of the provisions of the International Law,

4. restrain the respondents from handing over or escorting the detenus/accused, if any FIR is registered against them, to America, Afghanistan or any other country as they are to be tried, if need be, under law of the land and not by any other law and any court of any other country,

5. provide grounds of detention and/or FIR, if any, registered against them and let the petitioner see them to provide them legal assistance and to engage legal practitioners for them of their own choice,

6. Any other relief this Hon. Court deems fit may also be granted.

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

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