One of the last two remaining Afghans held in Guantanamo Bay, Asadullah Harun Gul, has been released after his lawyers threatened the United States government with contempt of court. A judge had ruled in November 2021 that the government was holding him unlawfully and must release him. A month earlier, a review board at Guantanamo had also decided he posed no danger to the United States. As AAN’s Kate Clark who has followed his case for seven years reports, Harun will now be reunited with family members he has not seen for 15 years, including a daughter who was still in the womb when he was detained. His release leaves just one Afghan, Muhammad Rahim, left in Guantanamo, the last of the 225 Afghans rendered to the prison camp.Asadullah Harun Gul released from Guantanamo and in Qatar, where he was met by the Taleban officials, finally on his way home. Photo: Bakhtar News Agency
It has been a very long wait for Harun’s family. He was detained on 4 February 2007 probably by Afghanistan’s then intelligence agency, the National Security Directorate (NDS), handed over to the US and rendered to Guantanamo on 22 June that year. A native of Nangrahar, Harun was a mid-level commander with Hezb-e Islami, which at the time was fighting in the insurgency. Only in 2016 did he make a plea for habeas corpus, which forces a government to justify its detention of an individual to a court or release them. This was far later than other Guantanamo detainees because Harun was only able to access a lawyer that year.
Harun’s petition included detailed allegations of torture, which are consistent with the accounts of other detainees and with what the US government itself has documented and published, including by the Senate’s intelligence committee. According to Harun’s petition:
During his captivity in a military facility in Afghanistan, Mr. Gul’s captors blindfolded, shackled, and hung him by the arms while they were still cuffed behind his back, stripped and tortured him. He was kept alone and naked in a cell without even a bucket as a toilet… During interrogations [in Guantanamo] prison authorities shackled Mr. Gul for up to twelve hours without water or food in a position that allowed him to neither fully stand nor sit, preventing any sleep. That sleep deprivation torture still plagues his nights nine years later.
The US government told the court that Harun was one of about 12 Hezbi cadres ordered by Gulbuddin Hekmatyar to go to Tora Bora in Nangrahar in late 2001 to assist Osama Bin Laden. After that, it said, he helped hide him in Kunar province. Harun was said to be involved in couriering funds, correspondence, and materials for al-Qaeda in Nangrahar, but in 2004, the relationship “soured”; after that, there was “only limited contact,” but he remained an active mid-level Hezb commander.
Harun disagreed with this account on the grounds that it was based on government intelligence reports which contained hearsay and had been obtained under torture. In any case, it always seemed that if Harun was a ‘fish,’ he was a very small one. Whatever else might be thought of the legality and utility of detaining people in Guantanamo, in Harun’s case, it was difficult to see why the US had taken such a junior player to Guantanamo in the first place, whether its aim was to disrupt operations or get intelligence.
Getting out of Guantanamo
However, once a person is in Guantanamo, it is extremely difficult to leave, especially once Barack Obama became president in 2008 and the Republican party gained control of Congress in 2011. Guantanamo became a political football, with Congress blocking prisoner releases of the sort that they had allowed without comment when George Bush was president. Since Obama’s presidency, the main vehicle for getting released has been Guantanamo’s Periodic Review Board, where representatives of the departments of State, Homeland Security, Justice, Defense, plus the Joint Chiefs of Staff and the office of the Director of National Intelligence decide if a detainee can be put on trial, it is safe to release him or he should be detained indefinitely.
After the pro-Guantanamo, pro-torture Donald Trump became president, securing Harun’s release through the Periodic Review Board looked unlikely. The wave of releases authorised in the last years and months of the Obama presidency ground to a halt. It was only four years later, in 2021, that it again seemed possible that Harun might be freed. Joe Biden was now president and had expressed his “goal…and intention” to close Guantanamo. Harun’s faction, Hezb-e Islami, had signed a peace deal with the Afghan government, with the full support of Washington, in 2016. In February 2021, the Afghan government had also petitioned for him to be sent home. Finally, on 30 August 2021 the full withdrawal of US military forces from Afghanistan made a mockery of US claims that any Afghan held in Guantanamo could threaten its security if sent home.
Once Biden became president, the number of detainees authorised for release by the Periodic Review Board again grew. It was no surprise then that it ruled, 0n 7 October 2021, that Harun could be released (see AAN reporting here). Nor was it a surprise that he was not freed. Until 22 June, he was one of twenty detainees cleared for release, but still held at Guantanamo. The US requires security guarantees from any country where a detainee is being sent, which can be difficult. In Harun’s case, the capture of power by the Taleban complicated his release, given the US does not recognise the Taleban government. Sending him to Pakistan, where his family lives in the Shamshatu refugee camp in Peshawar, should have been possible, but AAN understands the ousting of Imran Khan’s government in April 2022 spoiled that route. It is quite possible for detainees to remain in Guantanamo for months or years after the Periodic Review Board has cleared them for release. However, the US court ruling that his detention was unlawful made his continuing incarceration quite another matter.
Harun’s success in petitioning for habeas corpus on 24 November 2021 had been spectacular, the first time a Guantanamo detainee had won a petition for more than ten years. Whatever the administration – Obama, Trump and now Biden – the US Justice Department always fights releases through the courts. It uses hearsay and misinformation and demands that judges hear ‘evidence’ kept secret from petitioners and their lawyers or that has been obtained by torture. It is as if a person who is detained in Guantanamo is presumed guilty, unless they can prove their innocence. The reason successive administrations, even those that want to close Guantanamo, have taken this line is unclear. Possibly, if they did not, it would mean admitting that the whole regime of detentions is unlawful (see the author’s exploration of this question in chapter 3 of this special report from 2021, Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo. The courts have proved to be highly-biased; judges have to presume the state is telling the truth about a detainee, and often themselves have no knowledge about what is feasible or possible in Afghanistan. They virtually always find in the government’s favour.
In Harun’s case, the judge ruled that the United States no longer had the legal authority to detain him because his faction, Hezb-e Islami, “is at peace.” He rejected a second petition arguing that Harun Gul should be released because America’s war in Afghanistan is now over (For a detailed look at the ruling, see this report.) Still, the US government did not release Harun. It took the efforts of his lawyers to force the authorities’ hand, again via the courts. A delighted Mark Maher told AAN they filed a motion for contempt of court in May of this year:
We went to court a few times, the hearings were classified, the government’s filings were classified, but we made the argument that the government must obey the court. In the United States, a court ruling can’t mean nothing.
Maher said that they were in court yesterday, seeking a regular status update as to what the government was doing to comply with the court’s ruling that Harun’s detention was unlawful and he must be released. The court had not yet issued a ruling, when they got the news that Harun was on his way home. Another of Harun’s lawyers Tara Plochocki from Lewis Baach Kaufmann Middlemiss described how the government had fought them every step of the way, before finally releasing Harun. The case, she said, “shows that no one, not even the US government, is above the law.”
Currently, in Qatar, he will see his family, including daughter whom he has never seen, today (according to one of his legal team). While in Guantanamo, he had repeatedly drawn images of her, based on a photograph he was sent (more here on Harun’s artwork).
The last Afghan in Guantanamo
As for the last Afghan still in Guantanamo, Muhammad Rahim, who is also from Nangrahar and was also detained in 2007 but by Pakistan’s ISI intelligence agency, his position is far trickier. He is categorised by the US as a ‘high value’ detainee because of his alleged al-Qaeda links, or as he believes, because of what he might say about the torture he suffered at the hands of the CIA, torture that was documented in the Senate’s 2012 investigation into the agency’s torture and rendition programme. It included multiple, days-long bouts of sleep deprivation, slapping and dietary manipulation, including rectal feeding, when a tube is inserted and nutrient enemas forced into the rectum of detainees who are typically on hunger strike.
The US no longer has troops in Afghanistan, and indeed, the country is now controlled by the Taleban, a group which the US and United Nations have placed under sanctions on the grounds of its support for international terrorist groups, including al-Qaeda. Even so, Guantanamo’s Periodic Review Board may still decide to keep detaining Rahim on the grounds that he was (allegedly) linked to al-Qaeda almost two decades ago and is therefore a threat to US security. The US Justice Department, in its response to Rahim’s petition for habeas corpus, on past form, will also likely fight him every inch of the way to persuade the court that it should refuse his petition on national security grounds. In the Kafkaesque world of Guantanamo, it is all too possible to imagine both of these scenarios.
This article was last updated on 25 Jun 2022