Assadullah Haroon Gul, one of two remaining Afghan nationals held by the United States at Guantanamo Bay, Cuba, has just won his habeas case in the D.C. District Court. In an opinion still undergoing classification review, Judge Mehta held Gul’s detention unlawful. (Carol Rosenberg’s reporting for the New York Times has more on Gul, his capture by Afghan national security forces, and transfer to Guantanamo).
What comes next?
First, the U.S. government faces the decision whether to appeal Judge Mehta’s ruling. That would be a mistake. Gul’s repatriation has reportedly already been recommended by a Periodic Review Board (PRB). The Biden administration is seeking to wind down detention operations, not continue them. It makes no policy sense to hold onto detainees whom a PRB has decided can be repatriated (albeit potentially with security assurances, the full suite of which the U.S. may not get in a court-ordered release situation, see more on that below) and that a court has determined cannot lawfully be detained. And while we’ll know more about the basis for the ruling once the decision is public, it seems fairly clear that Gul had a strong legal case — any affiliation with al-Qaeda seemed greatly attenuated, the group with which he was caught fighting 14 years ago no longer exists, and to the extent he may have been affiliated with the Taliban, U.S. withdrawal from Afghanistan following the Doha agreement makes it very difficult to sustain detention on that basis either. An appeal would be likely to make what the U.S. government would consider “bad law,” and could even tee up for the Supreme Court the issue of whether Guantanamo detention operations remain viable at all (this would likely force the administration to argue for continued detention at the Supreme Court even when it’s trying to close the facility, and potentially face a loss). Given what we recently saw in the Zubaydah oral argument (which reached the Court as a state secrets case), that does not seem like a wise course for the U.S. government.
Second, assuming the United States does not appeal, what are the administration’s obligations and options for handling Gul’s transfer? The United States must assure itself that Gul would not be subject to mistreatment if repatriated to Afghanistan. In this case, there is no indication that is a risk. Mistreatment was not likely to occur under the Ghani administration (which had requested his return), and indeed, now that the Taliban are back in control in Afghanistan, there is arguably even less reason to fear Gul would be mistreated upon return. The United States would generally not consider the option of resettlement to a third country if repatriation is viable, which seems to clearly be the case here (moreover, given his “wife, daughter, brother and elderly mother live in Afghanistan,” according to his counsel, there is a clear path for his post-release return to his family).
News reporting has suggested that even those Guantanamo detainees who win their habeas cases could languish for months or even years at the facility, citing to the 17 Uyghurs who took years to resettle in third countries — but those cases are the exception not the rule. The Uyghurs were Chinese nationals who were at serious risk of mistreatment, or worse, if repatriated to China. In upholding its non-refoulement obligations, the Obama administration found resettlement destinations in third countries for each of the Uyghur former detainees, which was a formidable challenge in the face of Chinese pressure not to allow them to make homes in new countries. Simply put, Gul’s should be a straightforward case of repatriation, not a complicated resettlement with broader geopolitical implications.
Third, having satisfied itself that its non-refoulement obligations are met, the United States must expeditiously arrange for Gul’s transfer. This is also straightforward in a case like this. While there has been some confusion in initial public reporting about whether the United States must negotiate security assurances with the Taliban, that is not at issue in the case of a court-ordered release. If the United States lacks detention authority, it cannot delay repatriation in order to seek security guarantees (as it might do for a discretionary transfer following a PRB decision), nor does it need to do so to satisfy the transfer certification requirements contained in the National Defense Authorization Act, as court-ordered releases such as Gul fall under an exception to those statutory requirements. Essentially the only issue to be arranged with the Taliban is how to land a plane carrying Gul back to Afghan territory. And given the Taliban have no cause or motivation to deny his return, that should be no obstacle to expeditious transfer.
Stay tuned for more analysis when the public version of Judge Mehta’s opinion is released.