Court rules Guantánamo detainee’s detention is unlawful
Asadullah Haroon Gul: Detained in Guantánamo for 14 years without charge or trial
On October 19, 2021, the U.S. District Court for the District of Columbia granted Guantánamo detainee Asadullah Haroon Gul’s petition for a writ of habeas corpus, ruling that his detention is unlawful. The decision marks the first time a Guantánamo Bay detainee has won a habeas corpus petition in the last ten years.
“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,” said Tara Plochocki, counsel for Mr. Gul. “I’m hopeful that Asadullah will soon be reunited with his family.”
The U.S. Government’s basis for Asadullah’s detention was his membership in Hezb-e-Islami (HIA), a group that has formally been at peace since 2016, and its claim that he had been a part of or substantially supported al Qaeda within the meaning of U.S. laws authorizing detention of individuals in Guantánamo.
Rendered in 2007, Asadullah did not obtain an attorney until June 2016, when Lewis Baach Kaufmann Middlemiss and the human rights organization Reprieve US began representing him pro bono. They filed a petition for a writ of habeas corpus in July 2016, challenging the legality of his detention by the U.S. government in federal court.
The Government opposed Asadullah’s petition, arguing that he was properly detained under US law because he had been a part of an associated force—HIA—and had been a part of or substantially supported al Qaeda, who the United States continued to fight. The United States has taken the position that the 2001 Authorization for the Use of Military Force, known as the AUMF, gives it the authority to use force against persons affiliated with al Qaeda or any related groups, however tangential that connection may be, and that its detention authority is coextensive with its use of force, even if unilateral.
The parties filed extensive briefing, which culminated in an in-person classified hearing over several weeks in May 2020. On October 19, Judge Amit Mehta, granted Asadullah’s petition for a writ of habeas corpus, ruling that his detention is unlawful. Judge Mehta’s order was accompanied by a classified memorandum opinion.
This is a historic victory. Habeas corpus proceedings are notoriously difficult for detainees to win, as the Government must only satisfy the lowest burden of proof in U.S. law and show only that it was more likely than not that Asadullah was part of or substantially supported al Qaeda within the meaning of applicable law. Detainees seeking release from Guantánamo via habeas corpus petitions face extra obstacles. Much of the information pertaining to their grounds for detention is classified, even from them, and they have no right to call government witnesses to conduct cross-examination, all of which underscores the significance of Asadullah’s victory.