Afghan Government Calls for Release of Guantánamo “Forever Prisoner” Asadullah Haroon Gul

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As we await further information from the Biden administration about its planned review of Guantánamo, it’s reassuring to see that the Afghan government has submitted an amicus brief in a US court as part of efforts to secure the release and repatriation of Asadullah Haroon Gul, one of the last two Afghans in Guantánamo, after 14 years of imprisonment at Guantánamo without charge or trial, in which, for the first nine years, he didn’t even have representation by a lawyer.

I have followed Gul’s story since he arrived at Guantánamo from Afghanistan in June 2007, as one of the last prisoners to be sent to the prison. He had allegedly been involved with Hezb-e-Islami Gulbuddin (HIA, also identified as HIG), a group led by the Afghan warlord Gulbuddin Hekmatyar, who had briefly been aligned with al-Qaeda after the US-led invasion in October 2001, but the US authorities had never regarded him as significant, because he is the only Guantánamo prisoner not to have been assigned a Guantánamo Internment Serial Number (ISN). Instead, his prisoner serial number (3148) is from Bagram. This is significant because a Guantánamo number is required to be eligible for an administrative review at Guantánamo (a Combatant Status Review Tribunal), which is required if a prisoner is to be charged.

Even more significant is the fact that, even if Gul was involved with HIA, Hekmatyar no longer has any connection to al-Qaeda, and HIA “ceased all hostilities with the United States” in 2016, following a peace agreement in 2016 between HIA and the Afghan government, as the Afghan Ministry of Foreign Affairs explains in the brief, adding that “[d]etainees who are not a member of Al Qaida or the Taliban must be released if their organization is no longer engaged in hostilities with the United States.” In August, Hekmatyar’s return to Afghan political life was confirmed when he was appointed to the Afghan government’s High Council for National Reconciliation.

As the Ministry also points out, “Members of the United States Government have recognized this end to hostilities by negotiating with members of HIA. Thus, Haroon, a member of HIA, should be released.”

As the Ministry also explains, “Haroon should also be released because his continued detainment strains relations between Afghanistan and the United States. Afghanistan has agreed to release many Taliban prisoners pursuant to a peace deal made between the United States and the Taliban. Despite not being a formal party to the peace deal, Afghanistan has already released many prisoners and has announced the release of many more. Likewise,Haroon should be released by the United States, in recognition of the Peace Agreement between Afghanistan and HIA.”

Thirdly, and finally, the Ministry states that “Haroon should be released, notwithstanding any loose ties HIA is alleged to have once had to Al Qaida”, because, as “a junior HIA member,” he “could not have been a simultaneous member of HIA and Al Qaida, nor could he have been responsible for any loose liaison with Al-Qaida.”

After “HIA formally cut all ties with all extremist groups pursuant to the 2016 peace agreement,” the brief continues, “Any information that Haroon may have once had about any previous liaisons would no longer be useful because Haroon has been in US custody since 2007.” The brief also notes that, “In tacit recognition of this reality, the United States has already released all other members of HIA, including those with alleged ties to Al-Qaida. No legitimate claim can be made to treat Haroon differently.”

It is certainly true that all other Guantánamo prisoners with HIA associations have been freed, and, in addition, as I explained last April, “the continued absurdity of holding Gul was made clear when a former Guantánamo prisoner with HIG associations, Hamidullah, was repatriated from the United Arab Emirates, where he had been sent with other Afghans in 2016, because Hekmatyar had reached a peace agreement with the Afghan president, Ashraf Ghani. Two other men sent to the UAE, but not aligned with HIG, were also repatriated, and it seems obvious that Gul should also have been freed.”

Reporting on the submission of the brief for the New York Times, Carol Rosenberg noted that it is “believed to be the first time a foreign government has stepped into a habeas corpus case in two decades of detention challenges in federal court” by the Guantánamo prisoners. As Rosenberg added, “Earlier repatriations were the result of diplomacy, not litigation.” She also noted that “Judge Amit P. Mehta of the United States District Court for the District of Columbia accepted the filing on Feb. 5, after the Justice Department did not object to its submission.”

Gul is one of 22 prisoners, out of the 40 who remain at the prison, who have been accurately described as “forever prisoners,” men held without charge or trial even though the US government has no intention of charging them (12 others have been charged in the military commission trial system, while six others have already been approved for release).

An ongoing parole-type review process set up by President Obama, the Periodic Review Boards, has concluded that he, and the 21 other “forever prisoners,” remain some sort of threat to the US, but as Rosenberg explains, “the request by the Afghan government comes as American policy toward the release of the prisoners could be shifting. The Biden administration is assessing how to develop a strategy for closing the detention center at Guantánamo, and one option is likely to be starting again to arrange secure transfers to other countries for the prisoners who have not been charged.”

I very much hope that the US government is listening. Asadullah Haroon Gul is not, by any means, the only one of the 22 “forever prisoners” whose ongoing imprisonment has never been justified, but the submission by the Afghan government provides an opportunity to secure his release, if the Justice Department — which, notoriously, has fought almost all habeas petitions for the last 13 years, under George W. Bush, Barack Obama and Donald Trump — decides not to contest it, allowing Gul to return to his family, including the daughter born after his capture, who live in a refugee camp in Pakistan, as they did when he was first seized 14 long years ago.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55).

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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