Release the Last ‘Low-Value’ Afghanistan POW Held at Gitmo

In President Biden’s announcement that the U.S. troops will at last leave Afghanistan, there was no mention of the 40 prisoners of war still held in Guantánamo Bay, Cuba. 

Many of them have been held for the majority of their adult lives, through the decimation of al-Qaeda in Afghanistan, the release of all detainees affiliated with the Taliban, and the years-long peace accords struck by certain associated forces — not to mention the repeated U.S. promises to close the Guantanamo prison. A few have been charged with crimes, but somehow have yet to face trial. Others are ordinary prisoners of war, who long ago ceased to pose any threat to the United States. 

Among these men is our client, Asadullah Haroon Gul. Asadullah is the last “low-value” Afghan detainee in Guantánamo. He was detained in 2007 in Afghanistan, accused of being a commander of Hez’b-e-Islami Gulbuddin, or HIG, an organization that signed a peace agreement with Afghanistan in 2016.

In the five years since the peace agreement was signed, HIG has been fully incorporated into Afghan civil society. Their leader, Gulbuddin Hekmatyar, ran for the presidency in the most-recent election, and resides in a home owned by President Ashraf Ghani. Over one thousand of their members have been released from prison in Afghanistan.

Under the Geneva Conventions, which are binding law on the United States, the authority to detain Asadullah expired after the hostilities with HIG ended. The U.S. disagrees that it had an obligation to release him five years ago, but with the official end of the U.S. war in Afghanistan, there is no conceivable authority to continue detaining him. The government of Afghanistan, a close ally of the U.S., has repeatedly asked for Asadullah’s release and repatriation. It recently took the unprecedented step of filing a brief in his civil case seeking a court-ordered release.

Despite the request of U.S. allies and our unambiguous legal obligations, the Biden administration continues to actively oppose any effort to release Asadullah, including assigning a team of lawyers to oppose his petition for release in court.

The Biden administration has a choice to make. Many in this country spent the last four years devastated by the disintegration of norms—democratic, diplomatic, and legal. Releasing a prisoner of a war that is now over, to an allied country who wants him home, would show that under this President, the United States will once again respect international norms and the rule of law. If President Biden does not do so, then he will contribute to the United States’ tarnished legacy in the war in Afghanistan, marred by the use of torture, the killing of thousands of civilians, and now indefinite detention.

In announcing the war’s end, the President rightly asked: “[W]hen will it be the right moment to leave? One more year, two more years, ten more years?” He concluded that failing to clearly answer this question would mean our military would stay in Afghanistan forever. The same logic applies to Asadullah’s detention in Guantanamo. If the end of the war is not the right moment to release him, there will never be one.

President Biden has rightly recognized that it is well past time to end the war in Afghanistan. He cannot claim to have done so until he releases the prisoners of that war, and he should start with Asadullah Gul.

Mark Maher and Tara J. Plochocki are legal representatives for Asadullah Haroon Gul, who has been detained without charge by the United States since 2007.