Afghanistan Analysts Network – English

Rights and Freedoms

Landmark Judgement: US court finds detention of an Afghan in Guantanamo unlawful

Kate Clark 16 min

A United States court has ruled that the detention of Afghan Asadullah Harun Gul in Guantanamo is unlawful, the first time in ten years that anyone at Guantanamo has won such a petition. The ruling comes just days after the government cleared him for transfer out of the detention camp – as AAN’s Kate Clark reported on 18 October. The ruling sets an important precedent for the rights of Guantanamo detainees to habeas corpus, when the government is forced to justify its detention of an individual in a court of law. Here, Kate Clark presents an amended version of her earlier report. Even now, she says, after Harun Gul’s detention has been ruled unlawful, his release after 14 years of detention without trial is not inevitable. She also scrutinises the case of the other Afghan still in Guantanamo, Muhammad Rahim, the last person known to have been targeted in the CIA’s torture and rendition programme.

Mariam looking at photos of her father Harun Gul, who was detained while she was a small infant. Photo: Tolonews, 2020

The author has written two major reports on the Afghans in Guantanamo: “Kafka in Cuba The Afghan Experience in Guantanamo” (2014) 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 piece can be found in those two special reports. An earlier version of this report, written before the habeas ruling, was published on 18 October 2021, One of the two last Afghans in Guantanamo authorised for release, but when?

It is difficult to find words to express the magnitude of the surprise felt by many that a US court had ruled against the government in a Guantanamo detainee’s petition for habeas corpus. It has not happened for a decade. Guantanamo habeas proceedings are labyrinthine and Kafkaesque and heavily weighted in favour of the government, with judges proving notoriously unable to protect the individual against the arbitrary power of the state. Yet Harun Gul, a native of Nangrahar, detained since 2007, won his petition this week.

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 Islami commander, but always denied any al-Qaeda association. The US has never provided any evidence for that association, or indeed publicly 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. This is inherently unsafe because of the probable torture that he and other detainees have suffered; Harun’s lawyers have said he was “beaten, hung by his wrists, deprived of food and water, and prevented from praying. He has been subjected to sleep deprivation, extreme cold temperatures and solitary confinement.” Harun’s account is consistent with the claims of other detainees and with what has been documented in the US government’s own investigations into torture by the CIA and US military forces in Afghanistan.[1][1] Harun’s petition for habeas corpus, made in 2016, said: During his captivity in a military facility in Afghanistan, Mr. Gul’s captors blindfolded, shackled, and hung him by the arms while … Continue reading

In 2014, in her first scrutiny of the cases of the eight Afghans then still at Guantanamo, the author 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 had been to disrupt operations or gather intelligence, it made no sense. It seemed most likely that Harun was unlucky to get sent to Guantanamo, and once there, had got ‘stuck’. This may have been partly because he only got legal counsel in 2016, despite what his lawyers have said were “multiple attempts to seek legal representation.” This is when he petitioned for habeas corpus.

For the last five years, since the Ashraf Ghani government signed its 2016 peace deal with Hezb-e Islami leader, Gulbuddin Hekmatyar, Harun’s detention has appeared even more tenuous, an issue that is looked at in more detail below. Now that US troops are no longer even present in Afghanistan, assessing any Afghan ‘war on terror’ detainee as a threat to US security is profoundly problematic.

Petitioning for habeas corpus when you are a Guantanamo detainee

Habeas corpus is one of the oldest human rights. Its aim is to protect individuals from arbitrary detention. A habeas petition forces the state to justify the detention of an individual in court or release him or her. President George Bush decided in 2001 to hold ‘war on terror’ detainees at the Guantanamo Bay naval base on the island of Cuba precisely because he believed federal law, including the right to habeas corpus, would not apply there. At the same time, he decided to hold the detainees, not only outside federal law, but also outside the Geneva Conventions which cover prisoners of war, not even to give them the minimum protections prescribed in common article 3 of the Geneva Conventionswhich bans torture, “degrading and humiliating treatment” and the passing of sentences unless “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” That legal ‘no man’s land’ led to court challenges, a plethora presidential rulings, and churn.

The government saw a defeat in the Supreme Court in 2004 over habeas corpus (Rasul v Bush). Guantanamo detainees would be able use federal courts to challenge the legality of their detentions. This also meant they could get access to legal counsel and a connection with the outside world for the first time. A spate of habeas petitions ensued. Petitions were soon suspended, however, while courts ruled on procedures.

It was not until 2008 that habeas petitions restarted, but progress was slow. Procedural arguments – whether detainees or their lawyers could see evidence and whether the state could add material to its case – slowed petitions down. “I think the modus operandi,” one lawyer told the author, “was to drag out the procedure. It keeps [my client] in prison one way or another.” The courts 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 courts have deemed the standard of evidence required to keep someone in military detention in Guantanamo to be much lower than for criminal convictions. The bar was lowered still further by rulings in 2010 (Al-Adahi v. Obama) and 2011 (Latif v. Obama) which established that government evidence should be presumed to be accurate. “Careful judicial fact-finding,” one study found, “was replaced by judicial deference to the government’s allegations,” with the “government winning every petition.”Defence lawyer, Carlos Warner, who represented the other Afghan still in Guantanamo, Muhammad Rahim, for many years described the situation for trying to find redress as so bad that, “[n]o legitimate courts or actual due process exist in Guantanamo.” In 2010, The New York Times also described the development of “substantive, procedural and evidentiary rules” as “unjustly one-sided in favor of the government” and said the rejected appeals had made it “devastatingly clear” that the current court system in the US “has no interest in ensuring meaningful habeas review for foreign prisoners.”

What this meant in practice can be seen in the case studies of Afghans habeas petitions presented in the author’s 2014 report “Kafka in Cuba: The Afghan Experience in Guantanamo”. It documented judges accepting raw intelligence as evidence and multiple pieces of evidence, each individually too weak to pass muster, which together produced an apparent ‘mosaic’ pointing to culpability. Judges were documented as accepting the state’s assertion that detainees should remain locked up even after government claims had been found to be untrue, flawed or contradictory. They also accepted assertions that to anyone with a little knowledge of Afghanistan were strange or questionable. For example, a judge accepted that money changer Wali Muhammad’s links to Hezb-e Islami meant he was a member of a force ‘associated’ with al-Qaeda when, at the time of his detention in January 2002, that faction’s leader, Gulbuddin Hekmatyar, was still making contradictory statements about the US intervention and new Afghan government. Anyway, on such grounds, tens of thousands of Afghans could easily have been deemed suitable for detention in Guantanamo, including various mid and senior level members of the Republic government.

Several of the Afghan habeas cases also focussed on the plaintiffs’ association with the missionary group Jamat al-Tabligh which the US military had decided was a front for al-Qaeda. This is despite its membership running into several million in South Asia and it having been targeted both by the Taleban and radical Islamist groups like al-Qaeda which are hostile to its quietist stance. One of those Tablighis, Bostan Karim, who was a merchant selling plastic flowers in Khost had been detained with a satellite phone by Pakistan when he crossed the border; it handed him over to the US – at a time when the US was giving bounties for ‘terrorists’ – saying he matched the description of an al-Qaeda bomb-maker and claiming the satellite phone was a detonator for IEDs. Given Karim’s possession of a possible “detonation device,” said the judge who assessed his habeas petition, he found “the petitioner’s involvement with the Jamaat al-Tablighi to be hardly innocuous.” In 2002 when Karim was detained, there was no mobile phone network in Khost; a merchant carrying a satellite phone was proof of nothing.

Even more shocking than the inability of judges to properly question assertions by the government was an appeal court ruling which allowed judges to accept the testimony of detainees who had been subject to torture. Rather than dismissing such testimony out of hand, they were instead allowed to assess how ‘voluntary’ it was: Can a lapse of time between torture and confession, or the fact that the ‘confession’ was made to a different US agency than the one which conducted the torture make it ‘voluntary’?

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

Harun Gul’s case

An unclassified version of the court’s 20 October 2021 ruling that Harun Gul’s detention was unlawful has yet to be released, so the reasons for the judge’s decision are not yet fully known, but according to veteran Guantanamo watcher, Carol Rosenberg of The New York Times, the judge found that, “although he fought on the side of a militia in Afghanistan, [Harun] was not part of Al Qaeda.” The domestic legal definition of someone who can be held in Guantanamo is that they must be a member of Al Qaeda or an ‘associated force’. The government had already quietly withdrawn its reliance on Harun being a member of Hezb-e Islami as a legal justification for his detention in 2018, after his lawyers argued that, following the Ghani-Hekmatyar peace deal of 2016, Hezb-e Islami was no longer at war with United States forces in Afghanistan. The government had, however, continued to insist that Harun’s supposed ties to al-Qaeda meant he should still be detained. That was finally rejected by the judge in her ruling on his habeas petition on 20 October.

Already cleared for transfer

The court decision came swiftly on the heels of an assessment on 7 October (news of it came via Harun’s lawyers in a press release on 14 October) that had cleared Harun for transfer from Guantanamo. It was made by the Periodic Review Board which was established by President Barak Obama and 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. It assesses whether detainees still pose a risk to US security, and whether they should be kept in Guantanamo, ‘transferred’ out of the detention camp or put on trial in a military court.

Harun only got legal counsel days before his first Periodic Review Board hearing in 2016. When the Board decided then that he was a risk to US security, it hinted that if he had had proper legal representation earlier, it might have been deemed him safe for transfer. His lawyer certainly thought this was the case. The Board’s decision then 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 now decided it is no longer necessary to detain Harun to “protect against a continuing significant threat to the security of the United States” and has 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. In the Board’s very brief ruling, dated 7 October, which can be read here, it gave the following reasons why Harun was not a risk:

  • 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 gave no explanation for its abrupt change of mind in assessing Harun’s command status – in 2017, it had said he had a “leadership position in Hezb-e-lslami.” 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.[2]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’. The former government 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 previous government deemed Harun worthy of support.

The last reason given by the Board is just cruel, casting Harun as responsible for what has happened to his family, rather than accept the blame for 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.

Harun Gul repeated draws images of his daughter Mariam 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

Shockingly, neither being cleared for transfer by Guantanamo’s Periodic Review Board, nor a US court of law ruling an individual’s detention is unlawful means that, automatically, that individual will be freed.

There are currently 13 detainees in Guantanamo who have been cleared for transfer: three in 2009/2010; one in 2016, one in 2020 and seven in 2021 – for detail see this page of The New York Times Guantanamo Docket website). Getting out of Guantanamo after being cleared for transfer became extremely difficult after the start of the Obama presidency. For Afghans, repatriation was blocked largely because Republican politicians decided this would imperil US troops on the ground in Afghanistan, although they had not blocked repatriations under Bush (see chapters 3 and 4 of the author’s 2021 special report on the Afghans in Guantanamo for more detail on this).

The underlying problem here is that just being at Guantanamo has ‘monstered’ the reputation of anyone ending up there. Cast as the ‘worst of the worst’ by Bush and others, detainees were then denied any meaningful way to refute the  claims against them, either at Guantanamo or in the courts. This meant that, at least in the cases of the Afghans scrutinised by this author, fantastical claims made without evidence could stand for years. Now, however, there are no US forces in Afghanistan to imperil. This, at least, should not be an obstacle to Harun’s leaving Guantanamo.

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 for the repatriation of some detainees of other nationalities – given how the Taleban valorise the Guantanamo experience.

However, the Board recommends that “appropriate security assurances” are negotiated by and agreed to by relevant government departments and agencies prior to Harun’s transfer. It is hard to imagine the US negotiating such assurances with the Taleban, whose government it does not recognise. Indeed, according to Rosenberg, “U.S. officials have said they would not” seek “security assurances from the Taliban.” 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, after the Periodic Review Board assessment is not yet inevitable, as Harun’s lawyer, Tara Plochocki, warned in the 14 October 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 [Periodic Review Board] but who continue to languish in cells in Guantanamo.

Unfortunately, the habeas ruling also does not make Harun’s release inexorable. An appeal court ruling means that the judge cannot order the release of a Guantanamo detainee. In 2008, 17 Uyghurs from China were unlawfully detained. Given threats to Uyghurs in their native China, they could not be sent home, and it was years before the Obama administration could persuade third countries to accept them. It sent the last three to be re-settled in Slovakia in 2013, five years after the court ruled that their detention was unlawful.

The White House has declined to comment on the court’s upholding of Harun’s habeas petition, reported Rosenberg, but a spokesperson for the Justice Department, which has been defending the president’s authority to detain Harun at Guantanamo Bay, said “lawyers were still considering whether to appeal.”

Not fighting habeas petitions would have been an easy way to ensure detainees were released – as Congress is powerless to block releases authorised by a judge as they can those authorised by the Periodic Review Board. Yet, the Justice Department under Obama (and now possibly under Biden?), despite his stated aim of wanting to close Guantanamo, took every opportunity to block detainees’ petitions for habeas corpus. The Justice Department used discredited and worthless ‘evidence’ to block petitions, fought to keep evidence secret, used ‘testimony’ obtained from those who had been tortured, and used procedural issues to delay proceedings for years. In her 2021 study, the author concluded that this apparent contradiction in policy was driven by a failure to recognise that detaining individuals outside a system of law is wrong. It is what Obama’s first Special Envoy for Guantanamo Closure Dan Fried called the ‘original sin’ of Guantanamo, what made it so difficult for Obama to deal with the detention camp:

… Guantanamo was neither grounded in the laws of war nor in criminal justice. And once you have established a system outside of either international or US law, which this was, then it’s very hard to reintegrate it back into a legal framework.

Obama’s failure to close Guantanamo was only partly about Congressional blocking tactics. It was also because his administration clung to the US state’s right, or need, as they saw it, to continue to deprive individuals of their liberty outside a system of law. It meant that ultimately, Obama managed only to fine-tune Bush’s system at Guantanamo, not overturn it, to minimise the problem by reducing the number of detainees held there, but not resolve it.

Biden, like Obama has said his “goal and… intention” is to close Guantanamo. As in the last period of Obama’s time in office, the Periodic Review Board under Biden, has again started authorising detainees for transfer, apparently, as Obama did, to clear the ‘small fry’ out. The far more fundamental question is whether Biden is ready – as Obama was not – to deal head on with Bush’s ‘original sin’ in setting up the camp in the first place. If the Biden administration does decide to appeal the court’s decision that Harun’s detention is unlawful, it would point to the administration still clinging to its right to detain individuals outside of the laws of war or criminal justice.

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, is more sensitive for the Americans. Rahim is also from Nangrahar and was 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. He 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 learn also 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 publicly 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 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” that 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, that is 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 the 17 detainees now 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 gets to see whether, with its war in Afghanistan over, the US can finally countenance releasing him.

Edited by Rachel Reid. Original edit by Roxanna Shapour.


References

References
1

[1] Harun’s petition for habeas corpus, made in 2016, said:

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 Guantánamo] 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.

2 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’.

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