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Last ‘low-value’ Afghan detainee asks to be freed from Guantánamo Bay as U.S. troops leave Afghanistan

Afghan refugee Roman Khan holds a photograph of his brother Asadullah Haroon Gul in September. Gul is detained by the United States in Guantánamo Bay, Cuba. (Abdul Majeed/AFP/Getty Images)

A former Afghan militant who is one of the last 40 detainees held at the prison at Guantánamo Bay, Cuba, asked a U.S. judge for his freedom on Monday, arguing that President Biden’s recent troop withdrawal announcement amounted to a declaration that the U.S. war in Afghanistan is ending and that all prisoners of said war should be released.

Attorneys for Asadullah Haroon Gul, 39, acknowledge that he was captured in 2007 by Afghan forces and turned over to the United States as a commander in Hezb-i-Islami Gulbuddin, a paramilitary group then allied with al-Qaeda, that resisted the
U.S. invasion in 2001.

But that group, known as 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, recently ran for president and serves on Afghanistan’s High Council for National Reconciliation, which is leading peace negotiations with the Taliban, they argued.

Gul “is a prisoner of war — a war that has been over for many years,” attorney Tara Plochocki argued Monday in court for his legal team, comprising people from human rights group Reprieve and the Lewis Baach Kaufmann Middlemiss law firm. “If the rule of law means anything, [he] must be released.”

Biden will withdraw all U.S. forces from Afghanistan by Sept. 11, 2021

The Afghan government in February also called Gul’s continuing detention “detrimental” to U.S.-Afghan relations, marking what appears to be the first time a Guantánamo detainee’s government has formally demanded repatriation in U.S. court. Gul’s case compromised “compliance with the letter and spirit of two different peace accords,” counting a February 2020 U.S.-Taliban agreement, the Afghan government said.

Most of the afternoon-long hearing before U.S. District Judge Amit P. Mehta in Washington, which is expected to last several days, is classified. But in brief public opening statements that Gul observed by videoconference from Cuba, U.S. prosecutors said they would introduce in secret session his own purported statements to U.S. interrogators and those of an individual he allegedly worked alongside as a “courier and facilitator” for al-Qaeda.

“The government does not take lightly the fact that [Gul] has been detained more than 10 years, but we have been and remain at war with al-Qaeda,” U.S. prosecutor Stephen McCoy Elliott said.

Gul’s “detention, while lengthy, remains justified,” the prosecutor said. Gul has never been charged with a crime.

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, Elliott said. Gul also became close to the only other Afghan still at Guantánamo, Muhammad Rahim al Afghani, a former translator for Osama bin Laden who helped the latter escape Afghanistan in late 2001, Elliott alleged.

Gul allegedly trained with a student organization associated with Khalid Sheikh Mohammed — the alleged mastermind behind the terrorist attacks of Sept. 11, 2001, whose trial by U.S. military tribunal has been repeatedly delayed — and provided “substantial support” to al-Qaeda through the time of his capture as evidenced by his purported admission of the location of three of the group’s operatives, the prosecutor said.

The hearing for Gul — who, unlike Rahim, is the only low-level Afghan detainee who remains at the U.S. naval base — marked the first involving a Guantánamo Bay prisoner petitioning for federal court review in two years and was scheduled before President Biden on April 13 announced the planned withdrawal of all U.S. troops by the 20th anniversary of the 9/11 attacks.

Its timing has focused attention on the legal fallout of Biden’s decision “to end America’s longest war.” The consequences continue while the administration’s lawyers argue that the use of military force Congress authorized against al-Qaeda remains in effect and goes beyond Afghanistan, whose invasion it triggered after the terrorism strikes on New York and the Pentagon.

The case also spotlights administration officials’ promises to launch a renewed effort to close the prison at the military outpost in eastern Cuba — which has long symbolized America’s abusive treatment of terrorism suspects — without providing details.

The effort to try Mohammed and four other 9/11 suspects has long been bogged down, in part because of the torture of some detainees. Also unclear is whether “forever prisoners” — detainees who have never been charged but are seen as too dangerous to release — can be brought to the U.S. mainland and transferred abroad.

While President Barack Obama’s effort to close the prison failed amid sustained Republican opposition in Congress, just 40 prisoners remain of the once roughly 780 detainees housed on-site. Most were released under President George W. Bush, and 200 were resettled overseas under Obama.

In her statement to the court, Gul’s attorney said the fact that he 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.”

After HIG laid down arms, U.S. authorities shifted their justification for detaining Gul to his alleged support for al-Qaeda, Plochocki said. She mused whether their position was because “the policy of opposing detainee release in court is so entrenched.”

Gul denies being a member of al-Qaeda, and Plochocki described a prisoner whose values seemed at odds with the extremist group’s ideology, noting that Gul “strongly believes in girls’ education.”

Gul acknowledged belonging to the Hezb-i-Islami party and militia after living in one of its refugee camps as a young child and opposing the Soviet Union’s invasion and puppet government, but he said that the group has been at peace for many years.

In a statement that his lawyers said he dictated to them on a recent unclassified call, Gul thanked the court and said, “I am not a terrorist. I am an Afghan.”

Gul asked to be sent home to raise his daughter and asked for his release, “not just for me, [but because] I need the law to mean something, and America does, too,” Plochocki told the court, adding in her own voice, “I have to say I agree with him.”