Detention of an Afghan at Guantánamo Bay Is Ruled Unlawful

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The determination does not guarantee the merchandise of the prisoner, who was captured successful 2007; Uyghurs who won a akin lawsuit languished astatine the situation for years.

The U.S. subject   presently  holds 39 detainees astatine  the situation  analyzable  astatine  Guantánamo Bay, 12 of whom are cleared for merchandise  done  the parole-style board.
Credit...Erin Schaff/The New York Times

Carol Rosenberg

Oct. 20, 2021Updated 4:45 p.m. ET

WASHINGTON — A national justice has ruled that the United States has nary ineligible ground for holding an Afghan antheral astatine Guantánamo Bay due to the fact that though helium fought connected the broadside of a militia successful Afghanistan, helium was not portion of Al Qaeda.

U.S. District Court Judge Amit P. Mehta recovered that the detainee, Assadullah Haroon Gul, who was captured successful Afghanistan successful 2007 arsenic a subordinate of an Islamic militia, did not suffice arsenic a subordinate of Al Qaeda oregon an associated force, the ineligible ground for detention astatine Guantánamo Bay.

The ruling connected a petition of habeas corpus, however, does not guarantee his merchandise immoderate clip soon. In 2008, a national justice ruled that 17 Muslims from China of the Uyghur number were unlawfully detained astatine Guantánamo Bay but, arsenic an oppressed minority, could not spell home. The Uyghurs past languished astatine the situation for years portion the Obama medication sought nations to person them. The past 3 Uyghurs were sent to Slovakia for resettlement successful 2013.

“What the ruling means is that Mr. Gul’s detention is illegal,” Tara J. Plochocki, a lawyer for the prisoner, said connected Wednesday. “The assistance of the writ does not mean the justice tin bid the authorities to enactment him connected a level to Kabul, but the authorities is required to obey tribunal orders and to comply, it indispensable merchandise him.”

The White House declined to remark connected the decision. A spokeswoman for the Justice Department, which has been defending the president’s authorization to detain him astatine Guantánamo Bay, said lawyers were inactive considering whether to appeal.

The determination fundamentally doubles down connected the dilemma of however to merchandise Mr. Haroon, who earlier this period was approved for transportation by the Periodic Review Board, an interagency sheet that determines whether and however a detainee tin safely beryllium transferred to the custody of different country. Repatriation could necessitate seeking information assurances from the Taliban, which U.S. officials person said they would not do. The Taliban took power of Afghanistan successful August arsenic the authorities collapsed.

Mr. Haroon, who is astir 40, was captured by Afghan forces portion serving arsenic a commandant of the Hezb-i-Islami militia, which fought with the Taliban and Al Qaeda against the American and allied penetration of Afghanistan. He is held astatine Guantánamo nether the sanction Haroon al-Afghani.

His lawyers argued that his warfare ended successful 2016 when the militia made peace with the U.S.-allied Afghan authorities of President Ashraf Ghani. The overseas ministry of Afghanistan had filed a brief successful the lawsuit seeking his instrumentality earlier the Ghani authorities fell to the Taliban, depriving the U.S. authorities of a spouse with whom to negociate information arrangements and a repatriation deal.

The justice rejected the statement of Mr. Haroon’s lawyers that hostilities had ended successful Afghanistan, a abstracted ground for seeking his release.

Ms. Plochocki said that Mr. Haroon’s wife, daughter, member and aged parent unrecorded successful Afghanistan and that helium “is hopeless to get home” to marque definite his girl gets an education. The Taliban barred women and girls from going to schoolhouse the past clip they were successful power. He grew up successful a exile campy successful Pakistan, she noted. That being the case, the United States mightiness see sending him determination if helium is not allowed to instrumentality to Afghanistan.

Understand the Taliban Takeover successful Afghanistan

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Who are the Taliban? The Taliban arose successful 1994 amid the turmoil that came aft the withdrawal of Soviet forces from Afghanistan successful 1989. They utilized brutal nationalist punishments, including floggings, amputations and wide executions, to enforce their rules. Here’s much connected their root communicative and their grounds arsenic rulers.

The U.S. subject currently holds 39 detainees astatine the situation analyzable astatine Guantánamo Bay, 12 of whom person been cleared for merchandise done the parole-style committee — if diplomats tin scope information agreements that fulfill Defense Secretary Lloyd J. Austin III, who has to certify specified arrangements to Congress. Meantime the United States inactive considers the detainees cleared for merchandise to beryllium lawfully held wartime prisoners. It has simply concluded that, with definite information assurances, they are eligible for transportation to the custody of different government.

But present Mr. Haroon is antithetic from the rest. He not lone has been approved for transportation by the committee but is besides the lone captive determination whose detention a tribunal has recovered to beryllium unlawful. The tribunal does not person the authorization to dictate however the authorities should comply with his order.

Judge Mehta, for example, could not bid the authorities to enactment him connected a level and repatriate him due to the fact that that would magnitude to the judiciary inserting itself successful the functioning of overseas affairs. Courts antecedently person held that a national justice lacks the authorization to bid the transportation of a Guantánamo detainee to the United States.

Earlier this week, different lawyer for Mr. Haroon, Eric Lewis, urged the State Department to name a peculiar envoy to coordinate the transfers of detainees from Guantánamo Bay, an attack adopted by the Obama medication successful its failed effort to extremity detention operations astatine the base. Cleared men, helium said successful a statement, should beryllium sent “home oregon to countries that are consenting to assist.”

For now, the discussions with different countries are being handled by the State Department’s Bureau of Counterterrorism, nether the absorption of an acting coordinator, John T. Godfrey.

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