Judge grants habeas corpus request to Guantanamo prisoner for first time since 2010 – OpEd – Eurasia Review


In an important decision rendered last week by the Washington, DC District Court, Judge Amit Mehta, an Obama candidate, granted the habeas corpus petition of Asadullah Haroon Gul, an Afghan prisoner held at Guantanamo without charge no judgment since June 2007, and identified by US authorities simply as Haroon al-Afghani.

This decision is important because it is the first time since July 2010 that a judge grants a request for habeas corpus of a prisoner of Guantanamo on the grounds that his detention is illegal. After the Supreme Court granted the prisoners of Guantánamo constitutionally guaranteed habeas corpus rights, in Boumediene v. Bush, in June 2008, there followed a two-year period which was the only time in the history of Guantanamo where the courts were able to objectively assess the basis for the detention of prisoners, and in 38 cases the judges ruled that the government had failed to establish that they had a significant connection to Al Qaeda or the Taliban.

In 2010, however, politically motivated appeals court judges handed down a number of rulings that made habeas corpus meaningless for prisoners at Guantanamo. The last man released after obtaining his habeas corpus application was Mohammed Hassen (aka Mohammed Hassan Odaini), a Yemeni who was released in July 2010 after having his habeas request granted in May 2010. Two other prisoners had their habeas requests granted in July 2010, but they were among six men whose habeas requests were subsequently overturned by the court of appeal, and, from July 2010 to October 2011, eleven men had their habeas requests rejected, until they, and their lawyers, gave up. Several efforts were made over the following years to interest the Supreme Court in regaining control of Guantanamo detainee issues and to break down the obstacles raised by the appeals court, but all, unfortunately, were unsuccessful.

By the way, I must also mention that in October 2013, on the only occasion since Boumediene, the Ministry of Justice refused to challenge the continued imprisonment of a prisoner, Sudanese citizen Ibrahim Idris, but it was because he had serious mental health problems. Judge Mehta’s ruling, however, is the first time in eleven years and five months that a sane prisoner has seen his imprisonment condemned by a court as unlawful.

The decision was not entirely unexpected, given that the reason given by the Justice Department for requesting Gul’s ongoing imprisonment was absurd. He apparently held some sort of military post within the Hezb-e-Islami Gulbuddin (HIG), the militia led by Gulbuddin Hekmatyar, which had received large amounts of US funding during the Soviet occupation in the 1980s, but had failed. al-Qaeda ally after the US-led invasion in October 2001.

In 2016, however, HIG struck a peace deal with the Afghan government, which led to the release of HIG prisoners in Afghanistan, and even repatriation, from the United Arab Emirates, of Hamidullah (alias Mawlawi Hamdullah Tarakhail), of an important family supporting HIG, who had been transferred there from Guantanamo in August 2016.

The only place where the peace agreement did not seem to apply was Guantanamo. At Gul’s habeas corpus hearing in May, prosecutor Stephen McCoy Elliott asserted that while the government “does not take lightly that [Gul] has been detained for more than 10 years ”, we“ have been and remain at war with al-Qaeda ”and that, consequently, his“ detention, although long, remains justified ”.

As I explained at the time, the position of the Ministry of Justice “deeply undermines[ed] the HIG peace agreement, and indicate[ed] that in Guantanamo, as is so often the case, the basis for the continued detention of prisoners follows its own horrible logic, which has nothing to do with external reality.

Judge Mehta deserves credit for acknowledging and refusing to accept the absurdity of the Justice Department’s position, although it remains to be seen whether further challenges from the detainees will succeed in persuading the judges that their own imprisonment is also unjustifiable due to the end of the war in Afghanistan, rather than the very specific basis of Gul’s imprisonment, linked to the HIG.

To add to Gul’s legal success, he also had his recently approved release by a periodic review board, a parole-type process put in place by President Obama, in which a panel of officials from relevant government departments and intelligence agencies concluded that he could be transferred safely, with security arrangements, in light of its “lack of a leadership role in extremist organizations and its lack of a clear ideological basis for its past conduct.”

Speaking after the ruling was delivered, Tara J. Plochocki, who argued her case in May, said: “What the ruling means is that Mr. Gul’s detention is illegal. Granting the summons does not mean that the judge can order the government to put him on a plane to Kabul, but the government is obligated to obey and comply with the court orders, it must release him.

She added, as New York Times described it, “that Mr. Haroon’s wife, daughter, brother and elderly mother live in Afghanistan and that he ‘despairs of going home’ to make sure his daughter gets an education,” [b]Because “the Taliban banned women and girls from going to school the last time they were in power.” She also explained that he “grew up in a refugee camp in Pakistan” and, “[t]In that case, the United States might consider sending him there if he is not allowed to return to Afghanistan.

As the Times also explained, “The White House declined to comment on the decision,” although, surprisingly, a spokeswoman for the Department of Justice said her lawyers “are still considering appealing.”

That, as Tess Bridgeman explained for Just security, “Would be a mistake” and “would be likely to do what the US government would consider” bad law. ” at all ”, which“ would probably force the administration to argue for continued detention before the Supreme Court even when it tries to close the facility, and risk suffering a loss ”.

We can only hope that the Justice Department is listening – although it does not have a good track record when it comes to Guantánamo – and that Asadullah Haroon Gul will be released as soon as possible. Like his brother, Roman Khan, said after the decision was announced, “This is such happy and sweet news for our family. We now pray that Asadullah will be sent home soon – to where he belongs. The family only has eyes to see him again. are all waiting. His wife, his young daughter Maryam, his parents, me, his nieces and nephews. He has spent over 14 years of his life in this dangerous and terrible prison without charge. We are grateful to the judges and to all who continue to press for his freedom. ”

I wrote the above article for the “Close Guantanamo», Which I created in January 2012, on the occasion of the 10th anniversary of the opening of Guantanamo, with the American lawyer Tom Wilner. Please join us – all it takes is an email address to be counted against the continued existence of Guantanamo and to receive updates of our activities by email.

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