Afghanistan Analysts Network – English

Rights and Freedoms

One of the two last Afghans in Guantanamo authorised for release, but when?

Kate Clark 11 min

The United States authorities have cleared the transfer of the Afghan national, Asadullah Harun Gul, out of Guantanamo after detaining him without trial for 14 years. It accused Harun of being a Hezb-e Islami commander who conducted attacks on coalition forces and liaised with al-Qaida but has never given him any meaningful opportunity to answer these claims. The reasons the US has given now for deciding now to clear him for transfer appear as arbitrary as his detention. Rather, the motivation, argues AAN’s Kate Clark, appears to be that the Biden administration is trying to get rid of any remaining detainees in Guantanamo it judges to be ‘small fry’. And even now, the matter of when, to where and indeed whether Harun will be allowed to leave is unclear.

Sehar Bibi and Ibrahim with photos of their son, Harun Gul, in their home in Shamshatu refugee camp Pakistan.Sehar Bibi and Ibrahim with photos of their son, Harun Gul, in their home in Shamshatu refugee camp Pakistan. Photo: Aftab Khan, January 2021

Two days after the publication of this report, a US court ruled that the government had been detaining Harun Gul unlawfully. An updated version of this report was published on 24 October taking this into account and can be read here.

The author has written two major reports on the Afghans in Guantanamo: Kafka in Cuba The Afghan Experience in Guantanamo (2016) and “Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo” (2021). Unless given, all sources in this report can be found in those two special reports.

Harun Gul, a native of Nangrahar province, was detained in 2007. The US said the NDS picked him up and handed him over. The then NDS chief, Amrullah Saleh, subsequently denied handing over any Afghan to the US. Either way, Harun ended up in Guantanamo, where he was listed as Harun al-Afghani. It was only in 2016 when he finally got legal counsel and was able to make a petition for habeas corpus – when the state has to justify a person’s detention or release him or her – that his account of his capture was made known. The account included detailed allegations of torture, which are consistent with the claims of other detainees and with what has been documented in the US government’s own investigations, including by Congress:

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 alleged that Harun was a senior Hezb-e Islami commander who coordinated numerous – albeit unspecified – attacks against coalition forces and that he liaised with al-Qaeda and indeed was an al-Qaida courier. Harun admitted to being a Hezb-e Islamic commander but always denied any al-Qaeda association. The US has never provided any evidence for that association or indeed publically given any detail about its various assertions. Court documents have rather suggested that the basis of its belief that Harun was a courier for al-Qaeda were unverified intelligence reports and hearsay, including detainee testimony, which, given the probable torture of himself and others, is inherently unsafe.

A major study by the author in 2014 into the cases of the eight Afghans then still at Guantanamo concluded that Harun appeared to have been, at most, a mid-ranking Hezbi commander. Even beyond the fundamental question of the legality and usefulness of the US policy of detaining anyone outside domestic or international legal frameworks, the rationale for sending Harun, such a junior player, to Guantanamo was always perplexing. Whether the aim was to disrupt operations or gather intelligence, it made no sense. It seemed most likely Harun was unlucky to get sent to Guantanamo, and once there, had got ‘stuck’. As will be seen in the next section of this report, because the US has never given detainees any meaningful way to refute its claims against them, the US courts have never properly questioned the executive in habeas petitions, and the perceived risk of releasing anyone who ended up in Guantanamo was inflated to fantastical proportions, there has been little to stop men like Harun being detained for years.

After 2016, the motivation for keeping Harun in detention became yet flimsier. In September of that year, the former Afghan government signed a peace deal with Harun’s faction, Hezb-e Islami (AAN reporting here). It meant it was no longer at war with US forces. Yet America still kept Harun in detention. Then, in February 2020 came the decision by President Trump to withdraw US forces from Afghanistan, a withdrawal completed subsequently by President Biden. The US war in Afghanistan is over. Despite that, the Periodic Review Board could still have argued that Harun remained a threat to the US. It has made similarly incomprehensible assertions in the past, but in this case, chose not to.

Photo of Harun Gul from his lawyer with his family’s permission

Efforts to leave Guantanamo

Detainees in Guantanamo have never had any meaningful way of challenging their detentions. Harun, like other detainees, has tried to find justice through the US courts by petitioning for habeas corpus. He only made a petition very late on, in 2016, when he finally got legal counsel, despite what his lawyers have said were “multiple attempts to seek legal representation.” That this petition has still to be adjudicated five years on will be no surprise to anyone following Guantanamo habeas petitions, which can easily take more than a decade to get a ruling on.

The US courts have consistently failed to provide justice for Guantanamo detainees. Judges have proved unable or unwilling to stand up to the executive and have proved deficient in both scrutinising government assertions or protecting individuals from the arbitrary power of the state. The author’s first report on Afghans in Guantanamo published in 2016 went into their habeas petitions in painstaking detail and documented judges accepting hearsay, ‘evidence’ that had been kept secret from the petitioner and his counsel and statements made under duress. The appeal court ruled that habeas judges could weigh up whether to accept testimony obtained from those who had previously been tortured to consider whether it had been made ‘voluntarily’; it also ordered them to presume that state evidence was correct. Judges ruled that petitioners should be kept in detention even after government claims had been found to be untrue, flawed or the various pieces of evidence contradicted each other. They also failed to hold the government to account for delays – one Afghan had to wait in detention for almost three years for the judge to make up her mind about his petition; the petition of another took 13 years from start to finish.

The US authorities have also never provided any viable means, via the successive assessment systems established at Guantanamo, for detainees to refute the claims against them. In 2016, Harun got his first assessment by the Obama-established Periodic Review Board, which is made up of senior officials from the Office of the Director of National Intelligence and the Departments of Defence, Homeland Security, Justice and State. He had only just got legal counsel. The Board periodically decides if individuals should remain in detention, put on military trial or ‘transferred’ out of Guantanamo. In Harun’s case, it decided he was still a risk, but hinted that if he had had proper legal representation earlier, they might have been deemed him safe to transfer. His lawyer certainly thought this was the case. The Board’s decision meant he missed out on the drive in the last year of the Obama administration to get as many ‘low-level’ detainees out of Guantanamo before he left office. After that, in November of that same year, the pro-Guantanamo Donald Trump won office and, after January 2017, when Trump took power, the chance of the Board authorising Harun for release diminished to near zero. It was only in October of this year that the Board assessed his case for the first time since Joe Biden became president.

The Board has decided it is no longer necessary to detain Harun to “protect against a continuing significant threat to the security of the United States” and cleared him for transfer. The very strange set of reasons it gave showed that getting out of Guantanamo can be as arbitrary as being detained in the first place. The Board’s very brief ruling, dated 7 October, can be read here (news of it came via Harun’s lawyers in a press release on 14 October). As reasons why he was no longer a list, the Board cited:

  • Harun’s “lack of a leadership role in extremist organizations”;
  • His lack of a “clear ideological basis for his prior conduct”;
  • His affiliation with Hezb-e Islami and “its current role in the Government of the Islamic Republic of Afghanistan”;
  • The support given to Harun by the government of the Republic;
  • Support from a project (run by Reprieve) that helps former detainees, ‘Life After Guantanamo’, and from his family;
  • Harun’s “remorse for the effects of his past activities on his family” and his “desire to rebuild their family life, [his] efforts to put together a constructive plan for the future and… extensive efforts to take advantage of educational opportunities in detention.”

The Board did not explain its abrupt change of mind in assessing Harun’s command status – in 2017, it had said he had a “leadership position in Hezb-e Islami.” Now, it says he lacked one. Then there is the reference to Hezb-e Islami’s “current role” in the government of the Republic. Yet President Ghani and Hekmatyar signed their peace deal five years ago and the Republic ceased to exist on 14 August 2021. This reason is both five years overdue – and out-of-date.

A decision by the former government to support Harun’s petition for habeas corpus by supplying an amicus brief to the court in February 2021 does seem to have helped persuade the Board that he could safely be released.[1]An amicus curiae or ‘friend of the court’ is a non-party to a case who assists the court by providing relevant information, expertise, or insight – what is known as an ‘amicus brief’. It argued that “Haroon should be released because all hostilities between Hezb-e-Islami Gulbuddin (“HIA”) and the United States have ceased.” This was the first time Kabul had supported a detainee in Guantanamo in this way and showed that the Ashraf Ghani government had faith in Harun.

The last reason given by the Board is just cruel, blaming Harun for what he has done to his family, rather than what the US has done to him and by extension to them. Harun has only one child, a daughter who was a small infant when he was detained, who has grown up without a father; he has repeatedly painted her during his incarceration, reported his former lawyer, as we reported in 2017.

Harun Gul repeated draws images of his daughter Marian taken from a photo as well as incorporating her name into other artwork, according to his former lawyer who passed on this photo to AAN.

What happens next

Harun’s older brother Roman Khan told AAN they were all very happy with the news. Thanking God, all those who had helped them, and even the “government of America,” Khan said the whole family was ready to welcome his little brother home. However, being cleared for transfer does not automatically mean leaving Guantanamo or being repatriated. Actually getting home following a transfer clearance has been a terrible obstacle for Afghans and others, especially since the start of the Obama presidency, largely because Republican politicians decided transfers imperilled US troops on the ground and blocked them, as they had not done under Bush (see chapters 3 and 4 of the author’s 2021 special report on the Afghans in Guantanamo for more detail on this). However, now there are no US forces to imperil, this should not be an obstacle.

For their part, the Taleban have never done anything to try to get non-Taleban Afghan detainees out of Guantanamo. They could have raised this as a condition in US talks, especially before the Doha agreement of February 2020, for example, but did not, and the author knows of at least one plea that they turned down to include a non-Taleb in the prisoner swap for captured US serviceman, Bowe Bergdahl in 2014 (AAN reporting of the swap here). However, the Taleban would hardly object to an Afghan from Guantanamo being repatriated. Nor should there be a risk of Harun being tortured or ill-treated – something which has been a barrier to the repatriation of some detainees of other nationalities – given how the Taleban valorise the Guantanamo experience.

However, the Board recommends that “appropriate security assurances” be negotiated and agreed to by relevant government departments and agencies before any transfer. It is hard to imagine the US negotiating such assurances with the Taleban, whose government it does not recognise. Pakistan, therefore, seems a more likely option, which would be better anyway for Harun as his family is there, living in the Shamshatu refugee camp in Peshawar. All of this means that Harun’s freedom is not yet inevitable, as Harun’s lawyer, Tara Plochocki, warned in the press release:

The recommendation is a helpful first step, but the United States now needs to act on it, which they have failed to do with respect to many other detainees who have been cleared by the PRB but who continue to languish in cells in Guantanamo.

Muhammad Rahim, the other Afghan still in Guantanamo. Photo from his lawyer, with his family’s permission

The other Afghan still in Guantanamo – Muhammad Rahim

Harun Gul was the relatively easy detainee of the two Afghans left in Guantanamo for the US to clear for transfer. The case of the other, Muhammad Rahim, also from Nangrahar and also detained in 2007 – in his case by the Pakistani ISI who handed him over to the CIA, who rendered him first to a black site in Afghanistan and then to Guantanamo – is more sensitive for the Americans. Rahim was the last person to be rendered by the CIA, the last Afghan to be sent to Guantanamo and the last person known to have been tortured under the CIA’s ‘war on terror’ rendition and torture project, as documented in the 2012 Congressional report into CIA torture.

When Rahim arrived in Guantanamo, the CIA announced it had captured one of Osama bin Laden’s “most trusted facilitators,” “a tough, seasoned jihadist” who had “bought chemicals for one attack on U.S. forces in Afghanistan,” a man who was “best known in counter-terror circles as a personal facilitator and translator” for bin Laden and who had “helped prepare Tora Bora as a hideout for bin Laden in December 2001.” It was difficult to square these claims about Rahim with what was later revealed in the Senate’s 2012 report on the CIA’s use of torture. In this, his multiple, days-long bouts of sleep deprivation, slapping and dietary manipulation, including rectal feeding, are detailed. We also learn that the CIA’s interrogation of Rahim had “resulted in no disseminated intelligence report.” The interrogation was such a failure it triggered an internal review. This found that part of the problem was that his interrogators had lacked knowledge about him and had had no incriminating evidence to present to him. It looks feasible, then, that the only information the CIA had about Rahim were allegations passed on by the ISI, the Pakistani intelligence agency, which had originally detained him.

Like Harun, there is very little publically available detail of the US accusations against Rahim and even less, in his case, of the evidential basis behind US claims. Yet what can be gleaned from court documents suggests the same unreliable sourcing – unverified intelligence reports and testimony from himself and other detainees, including those who have made accusations that they were tortured.

The US has categorised Rahim as ‘high value’, meaning the secrecy surrounding his case and detention is even higher than around Harun’s. Rahim’s former lawyer, Carlos Wagner, has described being gagged from speaking about most aspects of Rahim’s case so severely that he could not say publicly why he thought Rahim was innocent nor discuss the government’s case against his client with his client, nor even investigate it himself. Wagner gave up on the US courts, calling the Guantanamo habeas process “Kafka-esque” and a Catch-22 “legal malaise,” which means there is no “viable legal process available to the detainees seeking release.”

In February 2021, when AAN asked then Afghan government officials whether they were going to support Rahim getting out of Guantanamo as they had done Harun, they confessed they did not know of his existence. They asked for information which seemed a step forward. That government is now gone. The Taleban, even if they did want to help Rahim, are now in power. US-Taleban talks are long over and they no longer have any influence over Washington. Indeed, they barely have any relations. Those pushing for Rahim’s release remain only his lawyers and human rights advocates.

Rahim himself believes the actual reason the US placed him in the ‘high value’ category, making his release far less likely, is not because of anything he did, but because of the crimes done to him, ie the CIA torture:

I am an innocent man. Parole comes after a trial, not before. They are holding me because I was tortured. Please give me a fair hearing, with my lawyer. (Letter to Warner, 27 April 2016)

The numbers give some credence to this. All 17 detainees classified as high value were rendered to Guantanamo by the CIA and almost all – 14 – are documented as having been tortured during interrogation.

Rahim’s last Periodic Review Board hearing was in July 2021, just before the completion of the US withdrawal and the collapse of the Republic. It will be some time, therefore, before he and the world get to see whether, with its war in Afghanistan over, the US can finally countenance releasing him.

Edited by Roxanna Shapour


References

References
1 An amicus curiae or ‘friend of the court’ is a non-party to a case who assists the court by providing relevant information, expertise, or insight – what is known as an ‘amicus brief’.

Tags:

Detention Guantanamo Torture CIA war on terror Guantanamo Five

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