In an important ruling in the District Court in Washington, D.C. last week, Judge Amit Mehta, an Obama nominee, granted the habeas corpus petition of Asadullah Haroon Gul, an Afghan prisoner held at Guantánamo without charge or trial since June 2007, and identified by the US authorities simply as Haroon al-Afghani.
The ruling is significant because it is the first time since July 2010 that a judge has granted a Guantánamo prisoner’s habeas corpus petition on the basis that his detention is unlawful. After the Supreme Court granted the Guantánamo prisoners constitutionally guaranteed habeas corpus rights, in Boumediene v. Bush, in June 2008, there followed a two-year period that was the only time in Guantánamo’s history that the courts were able to objectively assess the basis of the prisoners’ detention, and in 38 cases judges ruled that the government had failed to establish that they had any meaningful connection to either Al-Qaeda or the Taliban.
By 2010, however, politically motivated appeals court judges had passed a number of rulings that gutted habeas corpus of all meaning for the Guantánamo prisoners. The last man freed after having his habeas corpus petition granted was Mohammed Hassen (aka Mohammed Hassan Odaini), a Yemeni who was freed in July 2010 after having his habeas petition granted in May 2010. Two other prisoners had their habeas petitions granted in July 2010, but they were amongst the six men whose successful petitions were subsequently overturned by the court of appeals, and, from July 2010 until October 2011, eleven men had their habeas petitions denied, until they, and their lawyers, gave up. Several efforts were made in the following years to interest the Supreme Court in taking back control of Guantánamo detainee issues, and to break through the obstacles raised by the court of appeals, but all, sadly, were in vain.
As an aside, I should also mention that, in October 2013, on the only occasion since Boumediene, the Justice Department declined to contest the ongoing imprisonment of a prisoner, the Sudanese citizen Ibrahim Idris, but that was because he had severe mental health problems. Judge Mehta’s ruling, however, is the first time for eleven years and five months that a prisoner of sound mind has had their imprisonment condemned by a court as unlawful.
The ruling was not entirely unexpected, given that the Justice Department’s reason for seeking Gul’s ongoing imprisonment was preposterous. He apparently held some sort of military-connected position within Hezb-e-Islami Gulbuddin (HIG), the militia force headed by Gulbuddin Hekmatyar, who had received significant US funding during the Soviet occupation in the 1980s, but had allied himself with Al-Qaeda after the US-led invasion in October 2001.
In 2016, however, HIG reached a peace deal with the Afghan government, which led to the release of HIG prisoners in Afghanistan, and even the repatriation, from the United Arab Emirates, of Hamidullah (aka Mawlawi Hamdullah Tarakhail), from a prominent HIG-supporting family, who had been transferred there from Guantánamo in August 2016.
The only place the peace deal didn’t seem to apply was Guantánamo. At Gul’s habeas corpus hearing in May, 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.”
As I explained at the time, the Justice Department’s position “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.”
Judge Mehta is to be commended for having recognized and having refused to accept the preposterousness of the Justice Department’s position, although it remains to be seen if further challenges by prisoners succeed in persuading judges that their own imprisonment is also unjustifiable because of the end of the war in Afghanistan, rather than the very specific HIG-related basis of Gul’s imprisonment.
To add to Gul’s court success, he also had his release approved recently by a Periodic Review Board, a parole-type process set up by President Obama, in which a panel of officials from the relevant government departments and intelligence agencies concluded he could be safely transferred, with security arrangements, in light of his “lack of a leadership role in extremist organizations and his lack of a clear ideological basis for his prior conduct.”
Speaking after the ruling was delivered, Tara J. Plochocki, who argued his case in May, said, “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.”
She added, as the New York Times described it, “that Mr. Haroon’s wife, daughter, brother and elderly mother live in Afghanistan and that he ‘is desperate to get home’ to make sure his daughter gets an education,” [b]ecause “the Taliban barred women and girls from going to school the last time they were in power.” She also explained that he “grew up in a refugee camp in Pakistan,” and, “[t]hat being the case, the United States might consider sending him there if he is not allowed to return to Afghanistan.”
As the Times also explained, “The White House declined to comment on the decision,” although, astonishingly, a spokeswoman for the Justice Department said that its lawyers “were still considering whether to appeal.”
That, as Tess Bridgeman explained for Just Security, “would be a mistake,” and “would be likely to make what the US government would consider ‘bad law.’” It could even, she added, “tee up for the Supreme Court the issue of whether Guantánamo detention operations remain viable at all,” which “would likely force the administration to argue for continued detention at the Supreme Court even when it’s trying to close the facility, and potentially face a loss.”
We can only hope that the Justice Department is listening — although it doesn’t have a good track record when it comes to Guantánamo — and that Asadullah Haroon Gul will be released as soon as possible. As his brother, Roman Khan, said after the ruling was announced, “This is such happy, sweet news for our family. We now pray that Asadullah is sent back home quickly — where he belongs. The family has eyes only to see him again. We are all waiting for him. His wife, his young daughter Maryam, his parents, me, his nieces and nephews. He has spent more than 14 years of his life in this dangerous and terrible prison without charge. We are thankful to the judges and to everyone who continue to press for his freedom.”
I wrote the above article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.