Judge rules Afghan militant has been held in Guantanamo illegally, in what lawyers say is the first such ruling in 10 years

S E E D E D   C O N T E N T

A federal judge has found that a former Afghan militant has been held unlawfully at the Guantanamo Bay detention camp, the first time in 10 years that a detainee has won such a case against the U.S. government, his lawyers said.

U.S. District Judge Amit P. Mehta in Washington on Tuesday entered a final order and two classified opinions on Asadullah Haroon Gul's petition for a writ of habeas corpus and immediate release, court filings confirmed, without disclosing their contents.

Spokeswomen for the court and the Justice Department declined to comment, but a U.S. official confirmed that the petition was granted and that the opinion was undergoing classification review before release.

"This is a landmark victory for the rule of law and a much-needed reminder to the US government that there are limits on what it may do in the name of national security," Gul attorney Tara Plochocki said in a written statement.

Gul's counsel Mark Maher, with the nonprofit group Reprieve, said the lawyers were thrilled for their client.

"A federal court has finally affirmed what Asad has known for so long: He should be home with his family, and his detention is unlawful," Maher said.

The basis of the ruling remains classified, and only brief opening statements of proceedings were made public earlier this year. U.S. prosecutors said they planned to keep arguments in secret sessions because of the detainee's purported sensitive statements to U.S. interrogators and to an unnamed witness.

Gul, 40, was captured in 2007 by Afghan forces, turned over to the United States, and remains one of the last 39 detainees at the prison at Guantanamo Bay, Cuba. He is also one of only two Afghans who remain out of 219 sent there after the U.S. invasion of Afghanistan in 2001. President Biden formally ended the U.S. war in Afghanistan in August.

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Earlier this month, in a separate proceeding, the U.S. government determined that it was safe to transfer Gul, who has never been charged with a crime, out of Guantanamo. He is among 13 men who have been recommended for transfer by the multiagency Periodic Review Board (PRB), on the basis that they are not considered to pose a threat to U.S. national security. Among factors in its decision, the PRB cited Gul's "lack of a leadership role in extremist organizations and his lack of a clear ideological basis for his prior conduct."

Three of the men have been held for more than a decade, and clearance is no guarantee of release. Lawyers for those detainees say their continued detention despite having been cleared necessitates action by a court.

Gul's lawyers challenged his detention in federal court in July 2016 and argued in a hearing this spring that Biden's troop withdrawal announcement effective September 2021 amounted to a declaration that the U.S. war in Afghanistan was ending and that all prisoners of said war should be released.

Early this year, the U.S.-backed Afghan government of President Ashraf Ghani also filed a court brief in support of Gul's release, saying his continued detention was "detrimental" to U.S.-Afghan relations.

Gul "is a prisoner of war — a war that has been over for many years," Plochocki argued in May for Gul's legal team, which includes the law firm Lewis Baach Kaufmann Middlemiss. Plochocki said the fact that Gul remains detained has "gotten ridiculous," saying he is one of about 20 men still at the prison "who have not been and never will be charged with a crime."

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Prosecutors argued that Gul's detention, while lengthy, remained justified.

Gul at the time of his capture was a member of Hezb-i-Islami Gulbuddin, a paramilitary group then allied with al-Qaeda, that resisted the U.S. invasion in 2001.

The HIG made peace with the government in Kabul in September 2016. Hundreds of its members have been freed from Afghan prisons, and its former CIA-backed leader, Gulbuddin Hekmatyar, continues to have a presence in the country's political dialogue. The U.S. government also has freed scores of Taliban figures from Guantanamo, including high-ranking members who now hold leadership roles in Kabul.

But prosecutors argued that Gul's ties to al-Qaeda went deeper and that the U.S. government remained at war with al-Qaeda.

Gul made several trips to training camps specializing in chemicals and explosives, helped transport money, communications and individuals, and carried out "other operational taskings" for al-Qaeda operatives, U.S. prosecutor Stephen McCoy Elliott said in May. Gul also became close to the only other Afghan still at Guantanamo, Muhammad Rahim al Afghani, a former translator for Osama bin Laden who helped the latter escape Afghanistan in late 2001, Elliott alleged.

The government's position in Gul's habeas case appears fundamentally at odds with the position reached by the PRB — a body composed of representatives from the CIA, the Defense Intelligence Agency, the Department of Homeland Security and the Justice Department. The purpose of the board is to determine whether a detainee still poses a viable threat to U.S. national security, and, earlier this month, the board found that Gul did not.

But although the board assesses a detainee's dangerousness and makes a recommendation on that basis, it does not make a determination on whether the person's detention by the government is legal; that is where a habeas ruling comes in.

"The decision for the habeas petition is whether or not it's legal, and the decision for the PRB is whether or not it's wise," Maher said in an interview last week, likening the PRB to a "parole board."

At Gul's hearing in May, prosecutors said they would provide the judge with classified evidence to support their allegations of Gul's ties to al-Qaeda. They asserted that Gul had trained with a student organization associated with Khalid Sheikh Mohammed — the alleged mastermind of the terrorist attacks of Sept. 11, 2001 — and provided "substantial support" to al-Qaeda up to the time of his capture as evidenced by his purported disclosure of the locations of three of the group's operatives, the prosecutor said.

The hearing for Gul was the first involving a Guantanamo Bay prisoner petitioning for federal court review in two years and was scheduled before Biden announced the planned withdrawal of all U.S. troops from Afghanistan by the 20th anniversary of the 9/11 attacks, a process thrown into turmoil by the swift collapse of the U.S.-backed government and the return of the Taliban to Kabul.

Abigail Hauslohner contributed to this report.

© ABDUL MAJEED/AFP via Getty Images In this picture taken on Sept. 25, 2020, Afghan refugee Roman Khan displays a photograph of his brother Asadullah Haroon Gul. Gul is detained by the United States in Guantanamo Bay, Cuba.