Good news from Guantánamo, where the prison’s population has dropped to 36 with the release of the Afghan prisoner Asadullah Haroon Gul.
In a deal negotiated with the ruling Taliban government in Afghanistan, Gul was flown to Qatar, where he was welcomed by Taliban representatives who then arranged from him to be flown home to Afghanistan, to be reunited with his family, including his parents, his wife and his daughter, who he has not seen since she was a baby.
Gul’s release brings to an end a 15-year ordeal of imprisonment without charge or trial, which began when he arrived at Guantánamo in June 2007, at the age of 25 or 26, as one of the last detainees to arrive at the prison, having been seized in Afghanistan four months earlier.
Although the Pentagon described him as as a “dangerous terror suspect,” who was “known to be associated with high-level militants in Afghanistan,” and had apparently “admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL),” the authorities didn’t even know his hame, describing him only as Haroon al-Afghani (“the Afghan”).
In addition, he was never given a Combatant Status Review Tribunal, a requirement for all prisoners facing a trial by military commission, and in fact he was never given a Guantánamo Internment Serial Number (ISN), his prisoner number, 3148, having been allocated to him at Bagram.
Swallowed up in Guantánamo, Gul subsequently disappeared from view. It took three years before the International Committee of the Red Cross were able to get a letter to his family to explain that he was still alive, and was at Guantánamo, and another six years before he managed to secure legal representation, via lawyers at Reprieve.
By this point, in 2016, Gul had been made eligible for a Periodic Review Board, a parole-type process established by President Obama to ascertain whether 64 men who had not been put forward for trials, and had not already been approved for release by Obama’s first review process, the Guantánamo Review Task Force, should be recommended for release. The men in question had to convince the board — made up of representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff — that it was safe to release them.
Gul had only just met, for the first time, his attorney, Shelby Sullivan-Bennis, who memorably described him as a “bright-eyed, chatty young man,” but despite her best efforts — and those of Gul — to persuade the board that he should be released, his ongoing imprisonment without charge or trial was upheld in July 2016, and again in April 2017.
By now, of course, Donald Trump was president, and had made it clear that he had no interest in releasing any more prisoners from Guantánamo, and so it took until the start of Joe Biden’s presidency for any further progress to be made.
Throughout this whole period, it had been difficult to work out if Gul had been seized by mistake, or if he had been involved to some extent with Hezb-e-Islami Gulbuddin (HIG, or HIA), a militia led by Gulbuddin Hekmatyar, a recipient of CIA funding during the Russian occupation of Afghanistan, but who had aligned himself with al-Qaeda after the US-led invasion of Afghanistan in October 2001.
Crucially, however, Hekmatyar had reached a peace agreement with the Afghan government in 2016, meaning that the US no longer had any justification for holding anyone affiliated with HIG. This was made clear when an HIG-affiliated former Guantánamo prisoner, Hamidullah, was repatriated from the United Arab Emirates, where he had been sent with other Afghans in 2016, in December 2019, and yet, at Guantánamo, the peace deal was treated by the authorities as though it was irrelevant.
In an effort to secure Gul’s release, his attorneys submitted a habeas corpus petition on his behalf to the District Court in Washington, D.C., and last March the Afghan government joined the case, submitting an amicus brief as part of the efforts to secure his release and repatriation, pointing out that HIG “ceased all hostilities with the United States” in 2016, following the peace agreement, and adding that “[d]etainees who are not a member of Al Qaida or the Taliban must be released if their organization is no longer engaged in hostilities with the United States.”
Despite this, when Gul’s case was heard in court, prosecutor Stephen McCoy Elliott claimed that, although the government “does not take lightly the fact that [Gul] has been detained more than 10 years,” we “have been and remain at war with al-Qaeda,” and that, as a result, his “detention, while lengthy, remains justified,” taking a position that, as I stated at the time, thoroughly undermin[ed] the HIG peace deal, and indicat[ed] that, at Guantánamo, as is so often the case, the basis for prisoners’ continued imprisonment works to its own horrible logic, which has nothing to do with external reality.”
In October 2021, Gul finally had his release approved by a PRB, with the board members noting his “lack of a leadership role in an extremist organization and the limited timeframe of his associations with [al-Qaeda] members,” and just weeks later he also triumphed in the District Court, when his habeas petition was granted by Judge Amit Mehta, an Obama nominee, who confirmed that his ongoing imprisonment was unlawful.
Tara J. Plochocki of Lewis Baach Kaufmann Middlemiss, who also represents Gul, and who argued his case in court last May, responded to the ruling by stating, “What the ruling means is that Mr. Gul’s detention is illegal. The grant of the writ does not mean the judge can order the government to put him on a plane to Kabul, but the government is required to obey court orders and to comply, it must release him.”
It is reassuring that, despite the change of government in Afghanistan, this has now happened, and Gul has been enthusiastically welcomed back to Afghanistan, and is reunited with his family.
Now all that remains is for President Biden to discover some haste when it comes to also freeing the 20 other men still held who have been approved for release, 15 of whom have had those decisions taken by PRBs since he took office. As I have unfortunately become accustomed to saying, approving men for release means nothing until they are actually freed.