Gul v. Biden
| Decision Date | 18 October 2021 |
| Docket Number | Case No. 16-cv-01462 (APM) |
| Parties | Asadullah Haroon GUL, Petitioner, v. Joseph R. BIDEN, Jr. et al., Respondents. |
| Court | U.S. District Court — District of Columbia |
Eric Leslie Lewis, Tara Jordan Plochocki, Lewis Baach Kaufmann Middlemiss PLLC, Mark A. Maher, Pro Hac Vice, Reprieve US, Washington, DC, Clive A. Stafford Smith, for Petitioner.
Daniel Mark Barish, Julia Alexandra Heiman, Kristina Ann Wolfe, Indraneel Sur, Jason C. Lynch, Stephen McCoy Elliott, Terry Marcus Henry, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent Peter J. Clarke.
Daniel Mark Barish, Julia Alexandra Heiman, Indraneel Sur, Jason C. Lynch, Stephen McCoy Elliott, Terry Marcus Henry, U.S. Department of Justice, Civil Division, Washington, DC, for Respondents Joseph R. Biden, Jr., Lloyd J. Austin, III.
This case presents a question never before addressed in the legions of habeas petitions filed by Guantanamo Bay detainees: whether a member of an associated force remains detainable even after his force declares peace because his actions as a member of that associated force make him legally part of or a substantial supporter of al Qaeda.
Petitioner Asadullah Haroon Gul has been detained without charge at the Guantanamo Bay detention camp since June of 2007. He admits that, at the time of his capture, he was detainable as a member of Hezb-E-Islami Gulbuddin ("HIG"), a force that was associated with al Qaeda in the fight against coalition forces in Afghanistan. In 2016, however, HIG signed a peace agreement with the government of Afghanistan, promising to cease all hostilities and disavow its connections to terrorist organizations. By all accounts, HIG has abided by these commitments. Gul contends that HIG's peace agreement renders his indefinite detention unlawful. Respondents concede that Gul is no longer detainable for his participation in HIG. Nevertheless, they insist that he remains detainable because he was functionally a member of al Qaeda or, in the alternative, a substantial supporter of al Qaeda.
For the reasons that follow, the court grants Petitioner's habeas petition. Because HIG is at peace and Gul acted solely as a member of HIG during the Afghan conflict, the United States no longer has legal authority to detain him. He must be released.
[Redacted] JE 304, at 2525–26; see also JE 13, at 125.1 HIG was an important militant organization in the fight against Soviet influence, but when opposing parties seized power following the Cold War, its importance in Afghan politics waned. JE 304, at 2526–30. Though its national presence dwindled, HIG still remained influential in certain milieus, particularly in refugee camps that they operated. JE 301, at 2503–04.
Asadullah Haroon Gul was raised in a HIG-run refugee camp near Peshawar, Pakistan. JE 301, at 2502. HIG was a pervasive influence in his life. He received a HIG identification card at the age of ten. Id. at 2504. The group provided his family with education, food, and money. Id. He attended schools that were run by HIG, and he later became the head of his university's HIG student organization. Id. at 2504, 2507. According to Gul, he has "only ever been a part of [HIG]," and to him HIG "was like a religion." Id. at 2502.
At an early age, Gul began to receive military training as part of his education, including at the Derunta Center in Jalalabad, Afghanistan. See id. at 2504. There, Gul trained alongside al Qaeda explosives expert Abu Sulayman al-Jaza'iri. See JE 138, at 951. Gul and Abu Sulayman formed a lasting personal relationship. For example, when Abu Sulayman was involved in an explosives accident in 1998, Gul helped transport him to a nearby hospital. Id. And when Gul married, Abu Sulayman gave him 10,000 Pakistani rupees to pay for his wedding. See JE 134, at 926–27.
Gul also was a member of a student organization known as Sipah I-Danesh for approximately three years. JE 140, at 962. Students in Sipah I-Danesh attended religious seminars and participated in "a weeklong trip to Afghanistan for basic weapons training." Id. Some of its former participants "went on to become facilitators for al-Qa'ida." Id.
Coalition forces invaded Afghanistan in October 2001, and H1G threw its support behind al Qaeda. Its leaders vowed to expel foreign fighters from Afghanistan. Hekmatyar, HIG's founder, proclaimed that "[w]e are together" with Afghan jihadists and vowed that "Hezb-e-Islami will fight our jihad until foreign troops are gone from Afghanistan and Afghans have set up an Islamic government.’ " JE 370, at 3173 (internal quotation marks omitted). [Redacted] JE 370, at 3173; see also JE 13, at 126 [Redacted]
[Redacted] See JE 13, at 125–26; see also May 14, 2021 (PM) Hr'g Tr. at 14:9–15.2 In late 2001, Gul was one of approximately twelve HIG members that Hekmatyar instructed to travel to Tora Bora in response to an "urgent[ ] request[ ]" for assistance from Usama bin Laden, who was facing heavy fire there. JE 142, at 972. The mission was ultimately unsuccessful. Id. at 973. But once bin Laden was extracted by other fighters, Gul "served with Gulbuddin" in assisting bin Laden "to hide in the Chitral Region of Konar, [Afghanistan,] throughout 2002." JE 87, at 672.
In addition to aiding bin Laden's flight, Gul assisted al Qaeda in other ways. For example, in 2002, Gul facilitated the entry of a group of al Qaeda operatives from Pakistan into Nangarhar Province, a province in the eastern part of Afghanistan that borders Pakistan. Just prior to the U.S. invasion, Gul had joined a group of HIG fighters working under the command of Maulawi Humdullah. JE 300, at 747. An al Qaeda operative, Hajji Abdul Ahad, approached Maulawi Humdullah and Gul about bringing five al Qaeda members into Nangarhar Province and facilitating their presence once there. Id. Although Gul was "opposed to the plan, because it was difficult to facilitate and maintain an Arab presence in Nangarhar at that time," JE 45, at 295, he ultimately "agreed to facilitate the Arabs within Nangarhar Province," JE 100, at 747. Maulawi Humdullah and Hajji Ahad subsequently brought five al Qaeda operatives from Tirah, Pakistan, into Nangarhar, Afghanistan. Id. Thereafter, Gul couriered correspondence and funds for the al Qaeda operatives in Nangarhar for about one year. Id.
During that same time, Hajji Ahad introduced Gul to Hadi al-Iraqi, id. , al Qaeda's chief of military operations, JE 136, at 940. Gul developed a close relationship with Hadi al-Iraqi and undertook numerous tasks to assist him. See, e.g. , [Redacted] JE 128, at 892 (); JE 100, at 747 (); [Redacted] Gul likewise felt comfortable asking Hadi al-Iraqi for favors. When Gul's friend Twahir, a member of Lashkar E-Tayyiba (another militant group), wanted to establish connections with al Qaeda members in Konar Province, Gul recommended Tawhir to Hadi al-Iraqi, and Hadi al-Iraqi wrote a letter to his subordinate "endorsing Twahir and his group" to establish the connection. JE 136, at 940.
Within two years of agreeing to facilitate al Qaeda fighters in Nangarhar Province, it appears that Gul's relationship with al Qaeda soured. The record does not explain why. What the record does show is that, in 2004, Hadi al-Iraqi instructed Gul to attempt to reconcile with an al Qaeda operative named Shakirullah, who was in charge of al Qaeda's operations in Jalalabad and Tirah. JE 100, at 748; JE 136, at 940–41. [Redacted] al Qaeda was interested in re-establishing HIG's facilitation of operatives in Nangarhar. See JE 100, at 748. [Redacted]
Also around 2004, Gul became commander of HIG operations in Nangarhar. See JE 88, at 678. He oversaw "up to six groups of HIG fighters operating within Nangarhar," and the groups had a mandate from the HIG Nizamia Shura (the group's military council) to "conduct operations against coalition military targets." JE 86, at 665. Gul's fighters carried out numerous attacks against coalition forces between 2005 and 2006. See Third Suppl. Factual Return at 36–38. [Redacted]
Gul's connections to al Qaeda after 2004 are notably less robust than between 2001 and 2004. Gul told interrogators that he had only limited contact with al Qaeda members in the twelve to fourteen months preceding his capture in February 2007, JE 100, at 748, and therefore most of Respondents’ evidence of Gul's activities in that timeframe derives from other sources. Still, there is some evidence of Gul continuing to reach out to his connections in al Qaeda after 2004.
[Redacted]3
Additionally, there is some evidence that Gul was in contact with Abu Basir, one of the al Qaeda commanders in Jalalabad. In 2006, Gul received a letter from Abu Basir4 requesting Gul's "assistance in locating weapons that were supposed to have been acquired" for three al Qaeda operatives traveling to Nangarhar. JE 100, at 748. Gul told interrogators that he was not aware of the weapons acquisition and so did not respond to the letter. [Redacted]
There is also evidence in the record that, just prior to his capture, Gul was poised for a promotion within HIG. Hekmatyar intended to appoint Gul as the leader of a new, selective HIG force to be known as the "Lashkari Fedayeen." JE 91, at 696. This elite force would focus on "high-level attacks throughout Afghanistan, as well as more coordinated political activism, recruitment and training." Id. Gul's promotion would also include his installation as "a permanent member of HIG's Nizamia Shura." Id.
Before Gul could lead such a force, however, he was captured [Redacted] in [Redacted] ...
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