In a small step toward justice, a United States federal judge ruled this week that because Haroon Gul, an Afghan held at Guantanamo Bay, was not a member of Al-Qaeda or an associated force, the US had no legal basis for detaining him. The US government may appeal the decision.
This ruling draws attention to the hundreds of men held unlawfully at Guantanamo since the detention facility first opened in January 2002. Haroon’s case is rare in that a US federal court found detention unlawful even under the government’s dubious “war on terror” detention theory, which effectively allows detention until this so-called “war” ends. Most men held at Guantanamo, including Haroon, have not been charged with a crime.
Haroon was detained in 2007 because of his alleged association with Hezb-e-Islami (HIA), an Afghan militia group. Despite a 2016 peace deal between the US-allied Afghanistan government and the HIA, he has been kept in custody.
A military review board has approved roughly a third of the detainees at Guantanamo, including Haroon, for transfer to other countries on the grounds that they do not pose a threat to the US. Yet, these detainees have continued to languish in custody.
Haroon will likely remain detained at Guantanamo. For him to be repatriated, the United States would have to establish a security agreement with the new Taliban-led government. The other option, an agreement with another country to resettle him, is unlikely to happen soon, if ever, due to the arduous certification process required by the US defense secretary.
Over the years, Human Rights Watch has reported that detainees at Guantanamo Bay have suffered from torture, lack of appropriate medical care, and violations of due process. Continuing to detain Haroon following the court order that his detention is unlawful would violate international law.
The Biden administration should follow through with its stated intent to end detention at Guantanamo Bay. Those cleared for transfer should immediately be released, and the US should expeditiously resolve any pending criminal proceedings and put mechanisms in place that would end prolonged indefinite detention and military tribunals that don’t meet international fair trial standards. Though for Asadullah Haroon Gul, these changes will come far too late.