AFGHANISTAN

One Afghan wins in court, while other Guantanamo detainees remain ensnared in a rigged system

A landmark court ruling, which saw a Guantanamo detainee successfully argue that his detention was unlawful for the first time in more than a decade, has now been published. The judge said that the United States no longer had the legal authority to detain Asadullah Harun Gul because his faction, Hezb-e Islami, “is at peace.” The group signed a peace deal with the Afghan government in 2016. However, the judge rejected a second petition arguing that Harun Gul should be released because America’s war in Afghanistan is now over. That, says AAN’s Kate Clark, will be disappointing for the other Afghan still detained in Guantanamo, Muhammad Rahim, as well as non-Afghans whose detention relates to the war in Afghanistan.

This report has been amended to reflect a new development in Muhammad Rahim’s petition for habeas corpus, a request that the court order his immediate release because of the end of hostilities in Afghanistan.

Harun Gul, a native of Nangrahar, has been detained for 14 years. He was a mid-level commander with Hezb-e Islami (referred to in legal proceedings by the shorthand ‘HIG’, or Hezb-e Islami Gulbuddin), which at the time of his capture in 2007 was fighting in the insurgency. The ruling in his petition for habeas corpus, when a government has to justify its detention of an individual in court or release him or her, describes Harun as 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 and then, 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.” 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, had been obtained through torture [1]Harun’s account made in his habeas petition (no longer available online) included detailed allegations of torture, which are consistent with the claims of other detainees and with what has been … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_1’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_1’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); and/or were inadequately sourced. The judge in his habeas petition rejected this, saying the court must apply a “presumption of regularity” to government intelligence reports, meaning that they should be presumed to be reliable unless evidence proves otherwise (a ruling dating to the 2011 appeals court decision in Latif v Obama.) As we will see later, this ruling has heavily weighted the system against detainees, despite a plethora of evidence exposing the unreliability of US intelligence.

On 15 July 2016, eight years after he was detained, Harun filed a writ for habeas corpus. This was much later than other Guantanamo detainees because he only got access to a lawyer  that year. Two events have taken place since the filing of that habeas petition: Hezb-e Islami signed a peace deal with the Afghan government, with the full support of Washington, on 22 September 2016 (see AAN analysis here) and the US withdrew all its military forces from Afghanistan on 30 August 2021. Both these events affected how Harun and his lawyers approached the habeas petition.

What follows is a detailed look at the legal ruling on both petitions for habeas corpus, before considering what happens next for Harun and whether the rulings will have implications for the only other Afghan still held in Guantanamo, Muhammad Rahim, and other detainees who are also using the habeas route to argue that the US is unlawfully detaining them. The report ends with a scrutiny of how the US views risk, why with the Guantanamo detainees, threats and fears are magnified to a monstrous level, while the US government happily sat down to negotiate a deal with the Taleban, despite their far stronger, current links to al-Qaeda.

The legal basis for the US detention of ‘enemy combatants’

A week after the al-Qaeda attacks of 11 September 2001, the US Congress passed the Authorisation for the Use of Military Force (AUMF). It gave the president wide-ranging powers to use military force – and therefore also, implicitly, military detention – against those the US believed carried out or supported the 9/11 attacks. [2]The act, passed by Congress on 18 September 2001, authorised the president to: “…use all necessary and appropriate force against those nations, organizations, or persons he determines planned, … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_2’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_2’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); The US treated ‘war on terror’ detainees, those held under the AUMF, not as criminal suspects, nor prisoners of war, but as ‘enemy combatants’. It was an attempt to avoid giving them the rights either enshrined in either federal law (which was also the reason for housing them off-shore on the island of Cuba) or the laws of war, the body of law that includes the Geneva Conventions. In practice, the US categorised those it considered enemy combatants as follows:

  • Individuals who were part of al-Qaeda or the Taleban;
  • Individuals who were part of a force ‘associated’ with al-Qaeda that also engaged in hostilities against the United States or its coalition partners;
  • Individuals who supported any of those groups.

These three categories were used, for example, in the Combatant Status Review Tribunals, the one-off military boards established in Guantanamo in 2004 to determine if detainees were enemy combatants or not. [3]The tribunals asked whether a detainee had been “part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_3’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_3’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); The US courts also referred to these categories, [4]US courts had interpreted the 2001 AUMF, said the judge in Harun’s 2021 ruling, as giving “the Executive the authority to detain individuals who support or were a part of al Qaeda, the Taliban, … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_4’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_4’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); especially after detainees won a hard-fought battle for the right to petition for habeas corpus, which meant the government’s legal grounds for detaining them were argued over in the courts. However, as the Congressional Research Service has commented, for over a decade, the US government passed no legislation “to directly assist the courts in defining the scope of detention authority granted by the AUMF.” This changed in 2012 with that year’s National Defense Authorisation Act, the annual legislation passed by Congress which authorises military spending by the president. It listed the three categories, with only a slight change, that support must be “substantial.” [5]The 2012 NDAA said that individuals could be detained if captured in the course of hostilities authorised by the AUMF, if they were determined to be:

(A) to be a member of, or part of, al-Qaeda or … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_5’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_5’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); (Read the text of the act and analysis by the Congressional Research Service.)

The 2012 NDAA still did not define what ‘part of’ al-Qaeda, the Taleban or an associated force meant, but the US courts have interpreted this with a functional rather than a formal approach. For example, if a detainee attended an al-Qaeda training camp and stayed in an al-Qaeda guest house [6]Al-Madhwani v Obam (2010). jQuery(‘#footnote_plugin_tooltip_14429_4_6’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_6’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); or “travelled along a route consistent with travel patterns of those going to join the Taleban and al-Qaeda,” [7]Odah v United States  (2010). jQuery(‘#footnote_plugin_tooltip_14429_4_7’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_7’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); he could be considered part of al-Qaeda. The 2012 NDAA also did not define what an associated force meant, but the government, including in Harun’s case, has argued that associated forces are analogous to ‘co-belligerents’ in a traditional international conflict, that is, the armed forces of two or more nations fighting against a common enemy.

Also important is that the 2012 NDAA referred explicitly to the law of war. It said that US forces have the authority to detain those covered by the AUMF “pending disposition under the law of war.” The legislation gave several options of what that disposition could mean: along with a military trial, trial in another court or tribunal, and repatriation or transfer to another country, it listed “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”

Applying the law in Harun’s case: Petition 1 succeeds

Previously, it had not mattered which of the three categories the US government chose to base its argument that a detention was lawful, or indeed to cite more than one. For example, in 2016, Judge Collier supported the government’s contention in a habeas petition by another Afghan, a money changer from Baghlan, Haji Wali Mohammad, that he was “part of, and substantially supported, the Taliban and Hizb-I-Islami Gulbuddin at the time of his arrest in January 2002.” (She rejected the government’s assertion that he also supported al-Qaeda; for more detail on this petition, see the author’s 2014 report Kafka in Cuba: the Afghan experience in Guantanamo, pages 27-28.)

In Harun’s case, however, there has been a peace treaty between the former Afghan government and Hezb-e Islami, the ‘associated force’ to which Harun belonged. It can be assumed that this was the reason why, on 10 October 2018, the US government withdrew its reliance on what the judge called its “primary justification” for detaining him – his membership of Hezb-e Islami. However, the government still wanted to detain him at Guantanamo, citing Harun’s (alleged) “activities undertaken as part of HIG on behalf of or in support of al-Qaida” as the legal basis for his detention (see the Notice of Withdrawal here).

Harun’s petition was finally heard in 2021 – so many years between a petition being made and being heard in court are typical of the Guantanamo process. In court, the US government argued that his detention was lawful according to the 2012 NDAA because, as the judge summarised, Harun “was functionally a member of al Qaeda, or in the alternative, a substantial supporter of al Qaeda.” The government contended that Harun’s actions as a Hezb-e Islami commander in support of al-Qaeda meant he could be considered both part of al-Qaeda and also as having substantially supported it.

The judge had several problems with this stance. Firstly, there were the implications of the Hezb-e Islami peace treaty.

[W]here the detainee is a member of an associated force that has declared peace, the calculus changes. The act of declaring peace has legal significance, and a member of such a force should benefit from that legally significant act. Put differently, if a detainee joined the fight in support of an associated force, the associated force’s withdrawal should presumptively constitute the detainee’s withdrawal from hostilities as well.

The government tried to claim that Harun had exceeded his Hezb-e Islami orders in his services to al-Qaeda and so could also be considered part of al-Qaeda. It failed to persuade the judge that this had been the case.

After arguing in vain that Harun was part of al-Qaeda, the government contended that it could still legally detain him because he had substantially supported al Qaeda. Harun’s lawyers parried this by arguing, as the judge summarised, that this “prong of the 2012 NDAA is reserved for a ‘narrow category’ of individuals who are civilians authorized to accompany armed forces, and [Harun] clearly does not fit within that category.” The judge agreed with Harun’s lawyers. He referred to government arguments in other petitions that had cited the Geneva Conventions and the International Commentary on them that certain persons who accompany an armed force, such as cooks, launderers and drivers, may be detained as prisoners of war. He also gave examples from other court rulings that Guantanamo detainees deemed detainable for having given support to al-Qaeda had done so in a civilian capacity – a Yemeni detainee who worked as an assistant cook for the 055 Brigade of al-Qaeda Arabs integrated into the Taleban’s fighting force [8]The detainee was Ghaleb Nasser Al-Bihani. In May 2014, the Guantanamo Periodic Review Board decided that he could leave Guantanamo. He was transferred to Oman in January 2017 in the final days of the … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_8’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_8’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); and a Pakistani businessman who had allegedly financed al-Qaeda.[9]The detainee was Ghaleb Nasser Al-Bihani. In May 2014, the Guantanamo Periodic Review Board decided that he could leave Guantanamo. He was transferred to Oman in January 2017 in the final days of the … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_9’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_9’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], });

This led to a peculiar government argument, highlighted by the judge “that so long as Gul was not a member of al Qaeda, he could still be detainable for supporting al Qaeda, even if he was a member of HIG.” The judge found this stance doubly problematic. “First,” he said, “it is entirely without support in the law.” The government had not identified, he said, any law-of-war principle or court case or precedent to support this argument. Second, as when it argued that Harun, a member of Hezb-e Islami, could also be considered part of al-Qaeda, the government’s position “would yet again collapse the three distinct bases for detention in the 2012 NDAA.” He said the government could not both accept that Harun was a Hezb-e Islami fighter and argue that it could detain him anyway because he had substantially supported al Qaeda, given that this category is reserved for civilians.

The court declines for a second time to endorse an interpretation of the 2012 NDAA that so muddles the three distinct bases for detention without any legal authority counseling such an approach.

The judge said the government had not “proven by a preponderance of the evidence” that Harun Gul “remains detainable under the 2012 NDAA.” His detention was, therefore, unlawful. He must be released.

Applying the law in Harun’s case: Petition 2 fails

The United States’ war in Afghanistan is over, President Biden said on 31 August 2021: “Last night, the United States ended 20 years of war in Afghanistan — the longest war in American history.” Harun Gul, in a separate petition, argued that, as a prisoner of war, he should be released now that active hostilities had ceased. The judge summed up both sides of the argument in his ruling:

With the boots-on-the-ground portion of the United States conflict in Afghanistan finally at a close, Petitioner Asadullah Haroon Gul, who has been detained since February 2007 for his role in the aftermath of the September 11, 2001 terrorist attacks, contends that he should be immediately released. Gul argues that the United States lacks the authority to detain him because it is no longer engaged in active hostilities in Afghanistan. Respondents [meaning the US government] oppose. They argue that their detention authority pursuant to the 2001 Authorization for the Use of Military Force is not limited to a ground war in Afghanistan and that hostilities with al Qaeda and its associated forces continue in Afghanistan and elsewhere.

The judge denied this second petition. He bowed to the executive and the military as US courts almost always do when it comes to matters they perceive are related to national security. The judge said that in the matter of whether active hostilities persist, “the court must afford the utmost deference to the Executive’s position on that question.” It was especially so, he said, in the absence of any declaration by Congress terminating the war.

The judge said Harun’s petition had presented two questions for the court: 1) Whether US authority to detain Gul depended on the existence of active hostilities in Afghanistan specifically and; 2) whether active hostilities with al-Qaeda still existed. As to the first, he said the AUMF gave sweeping powers to the president that, “on the face, contain no geographical limitation.” He said that Harun wanted the court to read earlier case law [10]The judge said:

Lacking recourse to the statute, Gul takes refuge in the case law. He notes first that in Hamdi v. Rumsfeld, the Supreme Court interpreted the 2001 AUMF to authorize detention … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_10’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_10’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); as standing:

[F]or the proposition that all war-on-terror detainees arrested in Afghanistan are no longer lawfully detained. That the Court cannot do when, as here, its authority is at its nadir, and neither a higher court, Congress, nor the Executive has geographically bound the relevant conflict to Afghanistan.

Citing the same case law referred to above, the judge said he also did not read it as standing “for the proposition that the particular conflict in which a detainee is captured is limited to the country in which the detainee was captured.” The end of the United States’ “ground war in Afghanistan,” he ruled, “marks the end of just one aspect of the United States’ hostilities with al Qaeda.”

He said he shared Harun’s concern that the government had asked the court to “endorse what is fast approaching ‘perpetual detention’.” However, he bowed to the executive’s assertion that the US is still engaged in a war with al-Qaeda and its “dispersed network of regional affiliates.” On these grounds, he ruled, Harun was still lawfully detained.

It is worth stressing that the AUMF, with no time or geographical limit, is so broad that successive presidents have used it to launch multiple military engagements that it was never originally intended for. It has been the legal cover for presidents to target, not just the Taleban and al-Qaeda, but also enemies that did not even exist in 2001. (For more on this, see the Bureau of Investigative Journalism’s explainer on the legality of drone warfare.) Neither the executive nor Congress, whether Republican or Democrat, has reigned in the president’s powers in this regard. The judiciary, the third pillar of American democracy, in this case, the judge in Harun’s habeas petition, also declined to rule what might seem an obvious conclusion: if the US president says a war is over, his Department of Justice cannot at the same time just assert that hostilities continue. Yet, in the Kafkaesque world of Guantanamo, this has just happened.

What the judgements mean for the two Afghans – and others – still in Guantanamo

Harun’s successful first petition was based not on a contention of the facts, but of the law. In other, earlier, unsuccessful petitions made by Afghan detainees that the author has looked into, it was the facts that were argued over. Judges’ extreme reluctance to go against the executive in matters of national security, reinforced by the appeals court ruling that they must accept government evidence as reliable (Latif v Obama), always won the day. This led to strange decisions, bizarre readings of Afghanistan and to the impression that even when the US government scraped the barrel to find anything, no matter how flimsy, secret, or perverse, to justify a detention, or even after multiple elements of its case against a detainee were shown to be false, the courts would still rule that a detention was lawful.

In the case of Obaidullah, for example, a grocer from Khost, lawyers had called on a former naval officer who had gone to Afghanistan to investigate the government’s claims against Obaid and he proved many of them to be false. [11]Obaid’s military defence counsel had tasked Lieutenant Commander Richard Pandis to investigate the government’s claims for an earlier Military Commission trial that the government later dropped. jQuery(‘#footnote_plugin_tooltip_14429_4_11’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_11’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); For example, blood found in a car that Obaid had driven was not from wounded al-Qaeda fighters as the government claimed, but from his wife whom he had taken to hospital to give birth. The former naval officer was also able to back up Obaid’s claim that he had been tortured, which the government had denied. This was important as the government then withdrew Obaid’s ‘confession’ as evidence – rather than argue in court over whether or not it was the result of torture. [12]Pandis concluded that “Obaydullah was subject to sleep deprivation and physical abuse while at FOB Chapman.” According to US witnesses with personal knowledge, said Pandis, one service member was … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_12’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_12’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); It all made no difference. The judge still found in the government’s favour. Details of the habeas cases given in the author’s 2014 report Kafka in Cuba not only of Obaidullah (pp 37-42), but also Baghlani money-changer Wali Muhammad (pp 27-28) and a seller of plastic flowers from Khost, Bostan Karim (pp 45-46) all show similar instances of detainees unable to get a fair hearing in the US courts.

In Harun’s case, his first petition was won on a point of law; the government had been muddled in its use of the 2012 NDAA. Even so, the fact that the judge ruled against the government was still extraordinary to all those who have followed Guantanamo habeas cases. The deference to the executive shown by US judges when it comes to matters considered to be related to national security is very ingrained.

That the same judge in Harun’s case felt he could not rule against the government when it came to his second petition and the wider question of whether hostilities in Afghanistan had ended is unsurprising, given the repercussions to the whole detention regime it would have triggered. However, it will be disappointing, particularly for the other Afghan still in Guantanamo, Muhammad Rahim, but also some of the other detainees. There are currently 14 men whom the Periodic Review Board has said should continue to be held and whom it has not recommended for military trial.[13]Of the 780 men who were ever held in Guantanamo, 39 remain. Thirteen, including Harun Gul, have been recommended for transfer by the Periodic Review Board; 14 have been recommended for continued … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_13’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_13’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); All but three had allegedly been in Afghanistan in 2001. A successful ruling in Harun’s second petition would have helped any with habeas petitions immensely. Even so, Rahim and at least one other, the Palestinian, Zayn al-Abidin Muhammad Husain (aka Abu Zubaida), are also suing for their immediate release on the grounds that hostilities are now over – more on which below.

The case of the second Afghan in Guantanamo, Muhammad Rahim, is trickier than Harun’s. Also from Nangrahar, he was detained in 2007 by Pakistan’s Inter-Services Intelligence (ISI), which handed him over to the US. The CIA tortured him before he was rendered to Guantanamo. Rahim was a member of Hezb-e Islami Khales, another mujahedin faction which by the late 1990s had been inactive militarily for many years, although it remained a potent political network into the post-2001 years, including having senior members serving at the highest levels of the Karzai and Ghani governments. Rahim, an Arabic speaker, admitted to working with Arabs before and just after 2001. This was not in itself unusual or pointed necessarily to any shared ideological stance; Afghanistan was then very poor and getting paid employment much sought after. The US military interpreted the work of another Afghan, for example, Abdul Zahir, who had been a choki dar (doorman) and occasional translator for an Arab commander, as suspicious and sufficient to detain from 2002 to 2015. When the Periodic Review Board finally decided that Zahir could be released, it said he “was probably misidentified as the individual who had ties to al-Qaeda weapons facilitation.” (For detail on Zahir’s case, see pages 30-33 of Kafka in Cuba.)

US Air Force troops strip-search and secure an Afghan detainee in Mazar-e Sharif for transport to Camp Rhino in Kandahar. Photo: AFP / Cecilio M. Ricardo JR / US Air Force (undated, but received 27 December 2001).

Rahim’s cooperation with al-Qaeda was allegedly deeper and lasted longer than Harun’s. Announcing his capture, the CIA claimed he was 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.” (see this news report). However, there is very little public information about Rahim, including the substance and detail of the allegations against him because the US classes him as a ‘high value detainee’, which means that even more secrecy surrounds his case than that of a normal detainee like Harun. His former lawyer, Carlos Warner, has written about the ‘Catch-22’ situation he faced as his counsel, trying to navigate the “Legal Black Hole” of Guantanamo. He could not even publically say why he believed his client was innocent because it would draw on classified information, while the government was at liberty to say what they liked about him, Warner said.

Rahim’s torture by the CIA is documented in the 2014 Senate report. He was deprived of sleep on multiple occasions for as many as six days at a time, held naked and subjected to ‘dietary manipulation’, which meant being given a bland liquid feed instead of normal food. The interrogation produced so little information it triggered an internal investigation which found that one cause was the CIA lacking information about Rahim were unable to confront him with incriminating evidence. It looked feasible that the only information the CIA had about Rahim were the allegations passed on by the ISI. Rahim has said in letters to Warner that he believes he is being detained not for what he did but because of what he suffered and the US government’s desire to shield the CIA. (For detail on Rahim’s case, see pp 57-63 of Kafka in Cuba and pages 48-52 of a second report published in April 2021, “Kafka in Cuba, a Follow-Up Report: Afghans Still in Detention Limbo as Biden Decides What to do with Guantanamo”. A redacted summary of the US Senate Intelligence Committee’s 2014 report into the CIA’s rendition and torture programme can be read here and AAN analysis here).

Rahim also has a pending habeas request, filed on 27 July 2009. The government released its counter to this, known as a Factual Return, on 2 December 2009 and there were then a good number of filings (144), as Rahim’s lawyers sought and failed to see the state’s evidence (motions to ‘compel discovery’). In February 2016, the habeas petition was suspended. Lawyer Carlos Warner said that, having seen the way habeas petitions were dealt with by the judges, what he called “the legal malaise that is currently called Guantanamo habeas corpus,” he had concluded that they were pointless: they currently provide, he said in the report cited earlier no “meaningful judicial review.” That habeas petition is once again live.

The government’s response to Rahim’s 2010 habeas petition (that is, before the 2012 NDAA) cites several reasons for his detention, including his help to Bin Laden and other al-Qaeda leaders in 2001 as they were trying to escape Afghanistan; that he continued to facilitate the movement of funds and personnel for al-Qaeda after 2001; that he organised attacks against coalition forces and; was a member of the Taleban.

Rahim’s lawyers filed a Motion for Order of Immediate Release on 24 November 2021 (digital copy with AAN). It noted not only Biden’s statement on 31 August that the war in Afghanistan was over, but also two other statements, the first by the president on 14 April 2021 and the second by an unnamed senior administration official on 13 April 2021 stating that the US war against al-Qaeda in Afghanistan is over (emphasis in original):

War in Afghanistan was never meant to be a multigenerational undertaking. We were attacked. We went to war with clear goals. We achieved those objectives. Bin Laden is dead, and al Qaeda is degraded in Iraq — in Afghanistan. And it’s time to end the forever war.”

The Biden Administration further clarified that al Qaeda and the United States are not engaged in active hostilities, rather, the United States is only monitoring what remains of them, if anything:

“[W]e are not taking our eye off of the terrorist threat or signs of al Qaeda’s resurgence. They do not currently present an external— or do not currently possess an external plotting capability that can threaten the homeland. But this is something that we have to focus on: its potential for reemerging in the years ahead.

“[K]eeping an eye on whatever remnants remain of al Qaeda,” said the Motion, “does not permit detention authority under domestic or international law,” – and that would be the case even if Rahim had provided assistance to al-Qaeda. That al-Qaeda “remains an enemy of the United States,” it says, “is in no way equivalent to being in a state of actively hostilities” with al-Qaeda in Afghanistan or anywhere else. The only permissible justification for detention, it says, citing an earlier case [14]Hamdi v. Rumsfeld 2004 jQuery(‘#footnote_plugin_tooltip_14429_4_14’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_14’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); would be to prevent a combatant’s return to the battlefield.” However, Rahim’s lawyers argued: “There is no longer a battlefield for Rahim to return to.”

Rahim’s lawyers also cited the February 2020 US-Taleban deal: “There can be no clearer indication [than this agreement gives] that the war is officially over, and with it, any defensible theory that the United States may force Rahim to live out his days in a cell in Guantanamo Bay.”

The motion also criticised the ruling against Harun Gul’s second habeas petition where the judge had accepted the government’s assertion that the “United States is still engage in active operations against al Qaeda and its dispersed network of regional affiliates.” The judge had been mistaken to expand the authorisation of the AUMF, the lawyers argued:

[T]he plain language of [the AUMF] does not cover organizations that were later formed or those who share the same ideology as al Qaeda. The AUMF’s authorization to detain is limited to organizations that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. The Court in Gul erroneously expanded the scope of the AUMF’s detention authority to cover active hostilities against al Qaeda affiliates.

If this argument is rejected, Rahim’s petition may still come down to an argument over facts, of whether or not he was a courier and close associate of Bin Laden, previous petitions in which Afghans argued with the US government over the facts did not end in success. The order that courts must give US intelligence reports the presumption of accuracy tilts the odds of winning so heavily towards the state.

Rahim is not alone in pushing the courts on this. Another of the 14 currently being detained indefinitely in Guantanamo has also demanded he be released immediately because hostilities are over (report in The Guardian here). Abu Zubaida, the first victim of the CIA’s torture programme, who was held for four years in black sites and suffered particularly horrific abuse – waterboarded 83 times in a single month, held in a coffin-like box, deprived of sleep for days at a time and kept naked with hands shackled above his head, has also petitioned for his immediate release.

In a separate court case over state secrets that also involves Abu Zubaida – important because it helps raise the multiple injustices of Guantanamo in the public arena – one of the Supreme Court justices, Stephen Breyer, expressed astonishment about Abu Zubaida’s continuing detention in relation to active combat operations in Afghanistan: “Well, they’re not [going on] any more,” Breyer said. “So, what’s the, why is he here [ie in detention in Guantanamo]?” He asked why Abu Zubaida had not petitioned for habeas corpus. Abu Zubaida’s lawyer explained that he had done so and the petition had been pending for 14 years. “Don’t they decide it?” Breyer asked. “They don’t decide it?” The exchange revealed not only the ignorance at the top of the judiciary as to the Guantanamo habeas system, but also just how far it has strayed from the norms of justice. This court case has also been notable for being the first time a Supreme Court justice has referred to what detainees endured at the hands of the CIA as ‘torture’. [15]The quotes from the hearing were shared with AAN by a human rights group monitoring the case and also reported in The Guardian article already cited. jQuery(‘#footnote_plugin_tooltip_14429_4_15’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_15’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], });

As for Harun, unless the US government decides to appeal, he should leave Guantanamo on 19 December. Detainees who are authorised for release by the Periodic Review Board, the body set up by President Obama to decide if detainees are still a risk to US security, may be held for years while the US gets what it thinks are the necessary security guarantees for transferring them out of its custody. However, those whom the court has ruled are unlawfully detained must be released immediately if there is no appeal. Harun could either go to Afghanistan or Pakistan, where his family still live in the Shamshatu refugee camp. As well as an elderly mother and father and siblings, he has a wife and one daughter, who was just an infant when he was detained and is now a teenager.

Harun Gul’s mother Sehar Bibi kisses a picture of her son. Photo: Aftab Khan, 21 January 2021.

Conclusion

It may seem strange that even now, after the US has ended its war in Afghanistan, it is still clinging to what it says is the necessity to detain Afghans whom it says fought against it. This is particularly odd given that, in the years up to its withdrawal, Washington dealt with the Taleban, including directly with elements that had long and enduring relationships with al-Qaeda. These included Anas Haqqani whose family has links to Arab fighters going back to the 1980s. The latest report by the UN Sanctions Monitoring Team from June 2021 described the Haqqanis as the “primary component of the Taliban in dealing with Al-Qaida” with close ties “based on ideological alignment, relationships forged through common struggle and intermarriage” [16]The UN Sanctions Monitoring Team report said:

A significant part of the leadership of Al-Qaida resides in the Afghanistan and Pakistan border region, alongside Al-Qaida in the Indian Subcontinent. … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_16’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_16’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); (see also detail in this AAN report about the killing of civilians by a CIA-proxy force in Paktia province in 2019).

The US arrived at a bilateral deal with the Taleban, acceding to their request to exclude the then Afghan government in February 2020. It appeared that, in the desire to secure the deal, President Donald Trump’s envoy, Zalmay Khalilzad, was contented by only the slightest of concessions from the Taleban on al-Qaeda and other foreign internationalist jihadi groups in exchange for the withdrawal of US troops. The Taleban agreed not to “allow any of its members, other individual or groups, including al-Qa’ida to use the soil of Afghanistan to threaten the security of the United States and its allies,” but there was no commitment to hand over or expel foreign fighters nor any detail about how the various lightweight measures the Taleban had signed up to were to be monitored or verified. [17]The Doha deal bound the Taleban to: “send a clear message that those who pose a threat to the security of the United States and its allies have no place in Afghanistan”; not host them; prevent … Continue reading jQuery(‘#footnote_plugin_tooltip_14429_4_17’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_14429_4_17’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); (Read the text of the deal here and our analysis here).

An even more glaring exposure of the difference in how the US sees the threat posed by detainees in Guantanamo and those in Afghanistan came in summer 2020. The US pressured the government of Ashraf Ghani to release 5,000 Taleban prisoners, including those sentenced to capital crimes such as murder, so that the US could fulfil its February 2020 deal with the Taleban. Those convicted prisoners included men with far more recent and far bloodier accusations against them than either Harun or Rahim and, on the face of it, were far more dangerous to American interests, including American forces who were at that time still on Afghan soil. Yet, Secretary of State, Mike Pompeo, threatened to withhold one billion dollars of US aid if Ghani did not release them.

In the end, in May 2021, President Biden ordered the unconditional withdrawal of US troops. The continuing on-the-ground presence of al-Qaeda and other foreign jihadist groups in Afghanistan appeared to be not that important to Washington.

Yet, when it comes to Guantanamo detainees, the idea put across by Bush in 2002 that these men were the ‘worst of the worst’ has stuck. After Obama took office in 2009 and Guantanamo became a political football, Republican members of Congress who had been unconcerned about transfers suddenly strived to block them. The gap between the actual and the perceived – or portrayed – threat posed by the detainees widened. In the absence of any proper scrutiny of allegations and evidence, there has been nothing to reduce these imagined monsters down to size or create a space to deal with detainees rationally. There is nothing to suggest that the US should view either of the two Afghans remaining in Guantanamo as particularly dangerous, especially compared with some of the 5,000 Taleban prisoners released last year, or indeed the Taleban in government, with more than a dozen ministers under United Nations sanctions, including the new minister of interior Sirajuddin Haqqani. He has a ten million dollar FBI reward on his head and, according to the FBI, “maintains close ties to the Taliban [sic] and al Qaeda… and is a specially designated global terrorist.”

The different lenses with which the US has viewed its national security interests on the ground in Afghanistan and when it comes to Afghan detainees in Guantanamo is troubling. With the former, Washington has been either cavalier or pragmatic, depending on one’s view of the February 2020 deal with the Taleban and the subsequent US withdrawal. With the detainees, threats and fears are magnified to a quite monstrous level.

It is unfathomable why the US government asserts that Harun is a threat to national security. He was a mid-level Hezb-e Islami commander whom the US believes carried out orders to cooperate with al-Qaeda two decades ago, whose insurgent faction laid down its weapons five years ago and whose leader came to live in Kabul following a peace deal that was welcomed by Washington. Nor is it understandable why the US state continues to assert that Rahim, an alleged translator for Osama bin Laden, who has been dead now for over a decade, is so dangerous, he must continue to be locked up. It is difficult to imagine what exactly the US government fears these two men might do if they were allowed to go home, how they could worsen a situation in which the US’s allies, the Afghan Republic government collapsed in a matter of months, and its enemies, the Taleban, seized power.

There may be political and practical motivations driving successive administrations to defend every Guantanamo detainee who petitions for habeas corpus. They may not want to be castigated for being ‘soft’ on ‘terrorists’, and may also fear that successful habeas petitions could dent the rationale for the entire detention regime in Guantanamo carrying on outside the frameworks of either international humanitarian or US federal law. Successful petitions might also undermine the AUMF itself. US presidents, whether Republican or Democrat, have not sought to give up the wide-ranging powers it grants them under US domestic law not only to carry on with military detentions, but also launch military operations, including targeted killings, without Congress’ permission. Congress, meanwhile, has not sought to reign the presidents’ powers in.

For Harun and his family, the successful habeas petition is a great relief. They should soon be seeing each other, face-to-face, in a place of safety. However, assuming it does go ahead, his release will have come off the back of his lawyers winning an argument over a point of law, even though following the US withdrawal, it is difficult to see how that law now relates to Afghanistan and the Afghan conflict. There is, therefore, little hope to be gleaned from this judgment for the other detainees awaiting justice in Guantanamo.

Edited by Rachel Reid

References[+]




















References
1 Harun’s account made in his habeas petition (no longer available online) 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 the Senate’s intelligence committee:

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.

2 The act, passed by Congress on 18 September 2001, authorised the president to: “…use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (see here).
3 The tribunals asked whether a detainee had been “part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”
4 US courts had interpreted the 2001 AUMF, said the judge in Harun’s 2021 ruling, as giving “the Executive the authority to detain individuals who support or were a part of al Qaeda, the Taliban, or associated forces that have engaged inactive hostilities against the United States.”
5 The 2012 NDAA said that individuals could be detained if captured in the course of hostilities authorised by the AUMF, if they were determined to be:

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction al-Qaeda; and (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners. Persons described above are required to be detained by military authorities pending “disposition under the law of war…

6 Al-Madhwani v Obam (2010).
7 Odah v United States  (2010).
8 The detainee was Ghaleb Nasser Al-Bihani. In May 2014, the Guantanamo Periodic Review Board decided that he could leave Guantanamo. He was transferred to Oman in January 2017 in the final days of the Obama administration.
9 The detainee was Ghaleb Nasser Al-Bihani. In May 2014, the Guantanamo Periodic Review Board decided that he could leave Guantanamo. He was transferred to Oman in January 2017 in the final days of the Obama administration.
10 The judge said:

Lacking recourse to the statute, Gul takes refuge in the case law. He notes first that in Hamdi v. Rumsfeld, the Supreme Court interpreted the 2001 AUMF to authorize detention “for the duration of the particular conflict in which “the detainee was captured. 542 U.S. at 518 ( emphasis added ). That particular conflict, Gul reasons, is “the war in Afghanistan.” He argues that the D.C. Circuit has taken this view in Al-Bihani v. Obama. In that case, the D.C. Circuit considered a Guantanamo detainee’s challenge that he must be released because the conflict with the Taliban … . Al Bihani v. Obama, (D.C. Cir. 2010). Al-Bihani “offer[ed court a choice of numerous event dates—the day Afghans established a post-Taliban interim authority, the day the United States recognized that authority, the day Hamid Karzai was elected President mark the official end of the conflict .” The D.C. Circuit rejected those arguments, likening those moments to mere successful campaigns” in “a long war.” In passing the court explained that it would not fashion its own end date for active hostilities, and “[i]n the absence of a determination of political branches that hostilities in Afghanistan have ceased, Al-Bihani’s continued detention is justified.”

[1] Obaid’s military defence counsel had tasked Lieutenant Commander Richard Pandis to investigate the government’s claims for an earlier Military Commission trial that the government later dropped.

11 Obaid’s military defence counsel had tasked Lieutenant Commander Richard Pandis to investigate the government’s claims for an earlier Military Commission trial that the government later dropped.
12 Pandis concluded that “Obaydullah was subject to sleep deprivation and physical abuse while at FOB Chapman.” According to US witnesses with personal knowledge, said Pandis, one service member was punished for having another service member photograph him as he struck Obaydullah in the head with a rifle, and the camera was destroyed by US personnel. He also told the court that “detainees at Bagram during this period in 2002, including Obaydullah, were subject to extraordinarily coercive methods which cause me to question the reliability of resulting statements.”
13 Of the 780 men who were ever held in Guantanamo, 39 remain. Thirteen, including Harun Gul, have been recommended for transfer by the Periodic Review Board; 14 have been recommended for continued detention; ten have been charged by military commissions and two have been convicted. For details, see The New York Times Guantanamo Docket.
14 Hamdi v. Rumsfeld 2004
15 The quotes from the hearing were shared with AAN by a human rights group monitoring the case and also reported in The Guardian article already cited.
16 The UN Sanctions Monitoring Team report said:

A significant part of the leadership of Al-Qaida resides in the Afghanistan and Pakistan border region, alongside Al-Qaida in the Indian Subcontinent. Large numbers of Al-Qaida fighters and other foreign extremist elements aligned with the Taliban are located in various parts of Afghanistan. Al-Qaida continued to suffer attrition during the period under review, with a number of senior figures killed, often alongside Taliban associates while co-located with them…. The Taliban has begun to tighten its control over Al-Qaida by gathering information on foreign terrorist fighters and registering and restricting them. However, it has not made any concessions in this regard that it could not easily and quickly reverse, and it is impossible to assess with confidence that the Taliban will live up to its commitment to suppress any future international threat emanating from Al-Qaida in Afghanistan.

17 The Doha deal bound the Taleban to: “send a clear message that those who pose a threat to the security of the United States and its allies have no place in Afghanistan”; not host them; prevent them from recruiting, training and fundraising; instruct members of the Taleban not to cooperate with them; not provide visas, passports or other documents allowing them to enter Afghanistan and; deal “with those seeking asylum or residence in Afghanistan” in a way “that such persons do not pose a threat” to the US and its allies. The term ‘foreign fighters’ was not used; rather they were referred to as ‘those posing a threat to the US and its allies’, with only twice, a specification that this included al-Qaeda.

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The post One Afghan wins in court, while other Guantanamo detainees remain ensnared in a rigged system appeared first on Afghanistan Analysts Network – English.


Source: Afghanistan Analysts Network

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