Haroon Gul v. Biden ( 2021 )

UNCLASSIFIED//FOR PUBLIC RELEASE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
) Filed with the Classitie ed
ASADULLAH HAROON GUL, } ion Secu er
Petitioner,
v. ) Case No. 16-cv-01462 (APM)
JOSEPH R. BIDEN, JR. et al.,
Respondents.
)
MEMORANDUM OPINION
I. INTRODUCTION
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
supporter of al Qaeda.
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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.
I. FACTUAL FINDINGS
JE 304, at 2525-26; see also JE 13, at 125.' 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.
A. Gul’s Early Years
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. /d. 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. Jd. at 2504, 2507. According to Gul, he has “only ever been a part of
[HIG],” and to him HIG “was like a religion.” Jd. 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
' All citations to “JE” refer to the four volumes of Joint Exhibits that the parties submitted prior to the merits hearing.
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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. Jd. 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.” Jd. Some of its
former participants “went on to become facilitators for al-Qa’ida.” Id.
B. 2001-2003: Gul Assists al Qaeda
Coalition forces invaded Afghanistan in October 2001, and HIG 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).
at 3173; see also JE 13, at 126
See JE 13, at 125-26; see also May 14, 2021 (PM) Hr’g Tr. at 14:9-15." 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
* All transcripts of the evidentiary hearing in this case are identified by the date of the hearing and a notation indicating
whether the transcript was from that day’s morning session (“AM”) or afternoon session (“PM”).
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heavy fire there. JE 142, at 972. The mission was ultimately unsuccessful. Jd 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 100, at 747. An al Qaeda operative, Haijji Abdul Ahad, approached Maulawi
Humdullah and Gul about bringing five al Qaeda members into Nangarhar Province and
facilitating their presence once there. /d. 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. fd Thereafter, Gul couriered correspondence and funds for the
al Qaeda operatives in Nangarhar for about one year. /d.
During that same time, Hajji Ahad introduced Gul to Hadi al-lraqi, 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. ) EE / _ _
23, 2 592
transferred medicine from Hadi al-Iraqi to an al Qaeda operative to be taken to Tirah Valley);
JE 100, at 747 (Gul couriered funds and other materials for Hadi al-raqi);
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Po 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.
Cc. 2004: Rift and Attempted Reconciliation with al Qaeda
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.
al Qaeda was interested in re-establishing HIG’s facilitation of operatives in Nangarhar. See
JE 100, at 748.
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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]
D. Post-2004: Gul’s Work with al Qaeda Diminishes
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
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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.
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 Basir* 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.
Gul could not recall whether this letter was from Abu Basir or Abdullah Hamas. JE 100, at 748.
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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.” /d. Gul’s promotion would also include his installation as “a permanent
member of HIG’s Nizamia Shura.” Jd.
Before Gul could lead such a force, however, he was captured [i in.
GE February 2007. pO He has remained in detention since that time and has
been held at Guantanamo Bay since June 22, 2007. JE 213, at 1354 (in-processing medical
evaluation for Gul’s arrival at Guantanamo).
E. HIG Reaches a Peace Agreement
The situation on the ground in Afghanistan with respect to HIG has changed since Gul was
detained. On September 22, 2016, HIG entered into a formal peace agreement with the
government of Afghanistan. See JE 305, at 2549-56. The peace agreement required HIG to,
among other things, sever “any ties with terrorist groups and illegally armed organizations” and
announce that “it will not support them.” /d. at 2554. HIG appears to have kept that promise, and
Respondents do not contend otherwise.
Before proceeding any further, a word is in order about the basis for the foregoing factual
findings. During the evidentiary hearing, the court received nearly 300 exhibits, most of which
The evidence included
are classified.
Department of Defense reports—namely, tactical interrogation reports (“TIR”), intelligence
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information reports (“IIR”), and summary interrogation reports (“SIR”). JE 5 f 6-7.
Department of Defense TIRs contain
“intelligence derived during interrogations of detainees,” and, “if the information [in a TIR] has
intelligence value,” it will be converted into an ITR, which “is the main [Department of Defense]
reporting vehicle for” human intelhigence. JE 1, at 7. Finally, an SIR is a report “written by the
interrogator after an interrogation session” that includes “all the details of the interrogation session,
including[] date and time, language used, interrogation approach, and an evaluation of the detainee
regarding his deception and cooperation,” as well as “all the intelligence gathered from the
session.” /d. at 8.
In addition to intelligence documents, the court received numerous declarations from
experts in intelligence gathering and Afghanistan, as well as experts on HIG. The court also
received records specific to Gul, including medical records prepared during his detention. Finally,
Gul provided his own declaration for the court’s consideration.
Gul has made numerous arguments about the weight that the court should give to
Respondents’ intelligence reports. Specifically, he argues that (1) the aforementioned intelligence
reports contain hearsay and should not be accorded a presumption of regularity, Pet.’s Traverse
at 41-42; (2) the intelligence reports are not sufficiently evaluated, id. at 43; (3) Gul’s statements
in the intelligence reports are the product of torture and should be disregarded, id. at 43-44; (4) the
TIR rollup, a summary of multiple TIRs produced from Gul’s interrogations, contains insufficient
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sourcing, id. at 45; and (5) the records of Gul’s interrogation are not reliable because of language
barriers and “[c]ultural [i]gnorance,” id. at 49-50.° The court rejects these arguments.
First, Gul’s arguments that the intelligence reports contain hearsay, are not sufficiently
evaluated, and are not reliable because of language and cultural issues are squarely foreclosed by
Circuit precedent. This court must apply a “presumption of regularity” to government-produced
interrogation reports despite the fact that such reports are frequently “prepared in stressful and
chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily
redacted for national security purposes.” Latif v. Obama, 677 F.3d 1175, 1178-79 (D.C. Cir.
2011); see also Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (“We have already held that
hearsay evidence is admissible in this type of habeas proceeding if the hearsay is reliable.”).
Gul has provided no reason that the reports of his interrogations differ fundamentally from the
interrogation reports that the D.C. Circuit has held are entitled to a presumption of regularity, and
the court is bound to apply that presumption here.
Second, Gul’s arguments about the TIR rollup’s insufficient sourcing do not require the
court to discredit that document. After Gul filed his Traverse, Respondents filed a chart that
matched the sections in the TIR rollup to the corresponding source documents that substantiate
them. See JE 83. The chart allows the court to review nearly all of the source documents contained
in the TIR rollup, and to the extent Respondents have not identified the source of statements in the
TIR rollup, the court can evaluate the absence of substantiation on a case-by-case basis. The court
is therefore not concerned that the TIR rollup lacks sufficient sourcing to be reliable.
* Gul also raises several arguments related to specific facts or sources in the record. See, e.g., Pet.’s Traverse at 45
pertain. Gul also argues that the redactions in Respondents’ factual retums prejudice him. Id. at 42, These redactions
are the subject of a separate motion that is pending before the court, and the court decides that motion separately.
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Third, the court does not find that Gul’s statements are the product of torture. Gul
maintains that he was tortured first in Afghan custody following his capture and then at the Bagram
Temporary Screening Facility where he was detained by U.S. forces. See Pet.’s Traverse at 44.
He has not, however, identified any evidence corroborating his claims of torture. The evidence, if
anything, is to the contrary. For instance, Gul does not appear on the list of detainees who were
subjected to CIA enhanced interrogation techniques. S. Rep. 113-288, at 458 (2014), http://
www. intelligence.senate.gov/sites/defauit/files/publications/CRPT-1 13srpt288.pdf. Further,
Respondents have produced Gul’s medical forms from when he arrived at Bagram and when he
left Bagram. See JE 210, at 1346 (Bagram in-take form); JE 211, at 1349 (Bagram out-processing
form). Those medical forms indicate that Gul did not present any significant injuries and did not
report abuse by coalition forces after his capture. See JE 210, at 1346 (checking “NO” next to
prompt for “Reported Abuse by Coalition Forces After Capture” and stating “None” in response
to prompt for “Injuries if Any” but noting issue with “sinuses” and “eustachian tube dysfunction”),
JE 211, at 1349 (noting only a “head injury” on “side of head” that appears to be consistent with
need “for ENT exam’). Gul’s medical records thus do not corroborate his assertions that he was
tortured. See al-Qurashi v. Obama, 733 F. Supp. 2d 69, 87 (D.D.C. 2010) (noting the absence of
“noteworthy” physical evidence of torture undermined claims of mistreatment). And even if the
court were to credit Gul’s allegations that he was tortured, Gul has not identified any specific
statements that the court should disregard because they were extracted by torture. Particularly as
Gul affirmatively relies on many of the statements he gave to interrogators to support his defense,
the court cannot simply discredit Gul’s statements writ large.
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In sum, despite Gul’s many arguments that Respondents’ evidence should be discounted,
the court accepts the record as it was presented and will accord Respondents’ evidence a
presumption of regularity.
1. PROCEDURAL HISTORY
This matter has had an extended history. On July 15, 2016, Gul filed a petition for writ of
habeas corpus. Pet. for Writ of Habeas Corpus, ECF No. 1. Respondents filed factual returns
providing the basis for detaining Gul on (1) October 21, 2016, Resp’ts’ Initial Unclassified Factual
Return, ECF No. 15; (2) November 21, 2016, Notice of Classified Filing, ECF No. 17; (3) January
23, 2017, Notice of Classified Filing, ECF No. 22; and (4) March 3, 2017, Notice of Classified
Filing, ECF No. 27. Gul moved for additional discovery on May 12, 2017, Pet.’s Mot. for Disc.,
ECF No. 41, and the parties negotiated the scope of discovery from July 2017 through May 2019.
See Minute Order, July 10, 2017; Minute Order, Jan. 30, 2019. Respondents supplemented their
factual return once more in July 2019. See Mimute Order, July 11, 2019. Thereafter, Petitioner
filed his traverse on August 19, 2019, see Notice of Classified Filing, ECF No. 90, and
Respondents filed a response on August 14, 2020, Notice of Filing of Resp’ts’ Resp. to Pet.’s
Traverse, ECF No. 103. Gul filed his final reply brief on February 16, 2021. See Notice of
Classified Filing, ECF No. 115.
Following the completion of briefing, the court held an eight-day evidentiary hearing on
the merits of Gul’s petition in May 2021. The parties submitted nearly 300 exhibits at the merits
5 Just before the hearing, Gul moved for immediate release following President Joseph Biden’s announcement that
U.S. troops would fully withdraw from Afghanistan by September 11, 2021. See Mot. for an Order Requiring the
Immediate Release of Asadullah Haroon Gul, ECF No. 117, Mem. of Law in Supp. of Mot. for an Order Requiring
the Immediate Release of Asadullah Haroon Gul, ECF No. 117-1, at 1. The court denied that motion without prejudice
on the record, but instructed Respondents to be prepared to respond to a renewed motion when the United States’
withdrawal from Afghanistan was complete. Gul has since moved to renew his motion. Pet.’s Req. for Renewed
Consideration of Mot. for Immediate Release, ECF No. 130. The court addresses the renewed motion by separate
order,
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hearing and were permitted to give both classified and unclassified opening statements and closing
arguments. During the days-long evidentiary presentation, no witnesses testified, and both sides
delivered extensive presentations on the documentary record before the court. The court has
considered the parties’ arguments and the evidence before it, and now turns on the merits of Gul’s
petition for writ of habeas corpus.
IV. LEGAL STANDARD
In the immediate aftermath of the September 11, 2001 terrorist attacks in the United States,
Congress authorized the President “to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001). Courts
interpreted the 2001 Authorized Use of Military Force (“2001 AUMF’) to give the Executive the
authority to detain individuals who support or were a part of al Qaeda, the Taliban, or associated
forces that have engaged in active hostilities against the United States. See Hamdi v. Rumsfeld,
542 U.S. 507, 518 (2004); Ali v. Obama, 736 F.3d 542, 544 (D.C. Cir. 2013).
A decade later, Congress codified that detention authority in the 2012 National Defense
Authorization Act (“2012 NDAA”}. In that Act, Congress provided that the 2001 AUMF
“includes the authority for the Armed Forces of the United States to detain covered persons .. .
pending disposition under the law of war.” National Defense Authorization Act for Fiscal Year
2012, Pub. L. No. 112-81, § 1021{a), 125 Stat. 1298, 1562. A “covered person” includes “fa]
person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces
that are engaged in hostilities against the United States or its coalition partners.” /d § 1021(b)(2).
The United States may detain a covered person “under the law of war without trial until the end of
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the hostilities authorized by the” 2001 AUMF. Id. § 1021(c)(1); see also Al-Alwi v. Trump, 901
F.3d 294, 297 (D.C. Cir. 2018). The government must prove that an individual is a covered person
by a preponderance of the evidence. See Awad, 608 F.3d at 11 (“A preponderance of the evidence
standard satisfies constitutional requirements in considering a habeas petition from a detainee held
pursuant to the AUMF.”).
Two components of the United States’ detention authority require further discussion. First,
while the 2012 NDAA does not define when an individual can be said to be “part of” al Qaeda,
the Taliban, or an associated force, the D.C. Circuit has developed a functional test to answer that
question. See Bensayah v. Obama, 610 F.3d 718, 725 (D.C, Cir. 2010) (‘[ Whether an individual
is ‘part of al Qaeda” must be determined “on a case-by-case basis by using a functional rather
than a formal approach and by focusing upon the actions of the individual in relation to the
organization.”). The functional test looks beyond whether an individual participates in the so-
called “formal command structure” of al Qaeda and considers whether “a particular individual is
sufficiently involved with the organization to be deemed part of it.” fd (“That an individual
operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to
show he is ‘part of the organization ... .”); see also Uthman v. Obama, 637 F.3d 400, 403
(D.C. Cir. 2011) (“Indicia other than the receipt and execution of al Qaeda’s orders may prove that
a particular individual is sufficiently involved with the organization to be deemed part of it.”
(internal quotation marks omitted)). The functional test has been applied to wide-ranging
behavior, and the D.C. Circuit has held that an individual is functionally a member of al Qaeda
where he has, for example, traveled along a route “consistent with travel patterns of those going
to Afghanistan to join the Taliban and al Qaeda,” Odah v. United States, 611 F.3d 8, 16 (D.C. Cir.
2010); been captured in an area where al Qaeda was active while “in the company of a Taliban
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fighter and two al Qaeda members,” Uthman, 637 F.3d at 404; stayed in an al Qaeda guesthouse
and attended a training camp, Al-Madhwani v. Obama, 642 F.3d 1071, 1075 (D.C. Cir. 2011); or
joined and been accepted by a group of al Qaeda fighters, see Awad, 608 F.3d at 9.
Second, the 2012 NDAA likewise leaves “associated forces” undefined. But unlike the
term “part of,” the D.C. Circuit has not filled that definitional gap. At least one court in this Circuit
has “interpret/ed] the term ‘associated forces’ to mean ‘co-belligerents’ as that term is understood
under the law of war.” Hamilily v. Obama, 616 F. Supp. 2d 63, 74 (D.D.C. 2009). Defining
“associated forces” by reference to the law of war makes particular sense because the 2012 NDAA
explicitly links the Executive’s detention authority to “the law of war.” Pub. L. No. 112-81,
§ 1021{a), (c)(1}, 125 Stat. at 1562 (providing for detention of covered persons “pending
disposition under the law of war’). Additionally, the government in this case has proffered a
similar definition of an associated force: Respondents claim the “authority to detain individuals
who were part of associated forces that, in analogous circumstances in a traditional international
armed conflict between armed forces of opposing governments, would be detainable under
principles of co-belligerency.” Third Suppl. Factual Return at 4. Respondents explain that
“terrorist organizations that act as agents of al Qaeda, participate with al Qaeda in acts of war
against the United States or systematically provide military resources to al Qaeda in the war against
the United States, are analogous to co-belligerents in a traditional war.” Jd. (alterations omitted)
(quoting C. Bradley & J. Goldsmith, Congressional Authorization and the War on Terrorism, 118
Harv. L. Rev. 2047, 2112-13 (2005). Previous administrations have likewise defined an
associated force to have “two characteristics: (1) it is an organized, armed group that has entered
the fight alongside al Qaeda, and (2) it is a cobelligerent with al Qaeda in hostilities against the
United States or its coalition partners.” Jeh Charles Johnson, National Security Law, Lawyers,
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and Lawyering in the Obama Administration, 31 Yale L. & Pol’y Rev. 141, 146 (Fall 2012). All
of these definitions require an associated force to share more than “an abstract philosophy or even
a common purpose with al Qaeda,” Hamlily, 616 F. Supp. 2d at 75 n.17; rather, the associated
force must have taken action to support or join al Qaeda in its hostilities against the United States,
see, e.g., Al-Bihani v. Obama, 590 F.3d 866, 873 (D.C. Cir. 2010) (finding 55th Arab Brigade was
an associated force because it “defended the Taliban” and “harbored Al Qaeda”). The D.C. Circuit
has found that “HIG was associated with al Qaeda and the Taliban in late 2002.” Khan v. Obama,
655 F.3d 20, 33 (D.C. Cir. 2011).
Given the deference due to “the authority of the Executive in military and national security
affairs,” Munaf v. Green, 553 U.S. 674, 689 (2008) (internal quotation marks omitted), and the
fact that Gul has not challenged these definitions, the court accepts the definition of an associated
force as an organized, armed group that has entered the fight alongside al Qaeda and is a
cobelligerent with al Qaeda.
V. DISCUSSION
In the course of this litigation, Respondents abandoned their primary justification for
detention authority: Gul’s membership in HIG. See Notice of Withdrawal of Reliance on Certain
Exhibits in the Factual Return & on Certain Legal Justification for Detention, ECF No. 75, at i
(“Respondents hereby withdraw reliance on Petitioner’s membership in [HIG] as a legal
justification for his detention.”). Respondents did not expressly articulate their rationale for this
abandonment, but it would appear a concession that HIG’s declaration of peace with the Afghan
government, and their kept promise to disassociate with terrorist groups, disqualifies HIG as an
“associated force.” See id. at 1 (stating that “the Court need not in this case reach the question of
whether HIG continues to be an associated force of al-Qaida”). Gul’s membership in HIG
therefore cannot justify his continued detention.
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Respondents nevertheless claim ongoing authority to detain Gul under the 2012 NDAA.
They offer three bases: (1) under the functional test, Gul became “a part of al Qaeda by virtue of
his HIG-sanctioned activities in support of al Qaeda, May 28, 2021 (AM) Hr’g Tr. at 23:11-25:8;
(2} Gul became “a part of al Qaeda by exceeding the scope of his HIG-sanctioned activities to
perform services for al Qaeda, Resp’ts’ Resp. at 32-49; and (3) Gul “substantially supported”
al Qaeda, May 28, 2021 (AM) Hr’g Tr. at 65:20-66:1. The court addresses these three
justifications in turn.’
A. Applicability of the Functional Test
Respondents’ first basis for detention, the parties agree, presents a novel question. May 28,
2021 (AM) Hr’g Tr. at 26:4—7; id. at 75:12-17. Respondents concede that Gul was a member of
HIG, one of al Qaeda’s associated forces, ¢.g., Resp’ts’ Resp. at 34, but they argue that Gul’s
actions as a member of HIG that benefitted al Qaeda also make him a member of al Qaeda under
the Circuit’s functional test. See, e.g., May 28, 2021 Hr’g Tr. (AM) at 8:14—21; id at 17:1-11.
That is, Respondents argue that, by straightforward application of the functional test, the actions
Gul took as a member of an associated force (HIG) make him equally a member of the primary
force (al Qaeda}. See id. at 23:17~25:1. The court cannot accept Respondents’ position. Both the
text of the 2012 NDAA and the principles motivating the associated force doctrine are at odds with
simply applying the functional test to an individual whom Respondents concede was a member of
an associated force.
7 in addition to his arguments that Respondents flack the authority to detain him, Gul has challenged his detention on
substantive due process grounds, Because the court concludes that Respondents lack the authority to detain Gul, it
does not reach Gul’s substantive due process argument,
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/, The Text of the 2012 NDAA
First, as a matter of statutory interpretation, the 2012 NDAA differentiates between
al Qaeda and the Taliban, on the one hand, and their associated forces, on the other. See Pub. L.
No. 112-81, § 1021(b}(2), 125 Stat. at 1562. The court’s application of the statute must give that
differentiation meaning. “It is... a ‘cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.’” U.S. ex rel. Totten v. Bombardier Carp., 380 F.3d
488, 499 (D.C. Cir. 2004) (quoting Ala. Dep't of Env’t Conservation v. EPA, 540 U.S. 461, 489
n.13 (2004)). Respondents’ position violates that principle. They advocate for such an expansive
interpretation of their detention authority over individuals who are “part of” al Qaeda that a
member of an associated force would become part of al Qaeda simply by performing the very tasks
that make two forces associated. Recall that, for a force to be associated with al Qaeda, by
definition it must take action that benefits al Qaeda; Respondents explain that, to be “associated,”
forces must “act as agents of al Qaeda, participate with al Qaeda in acts of war against the United
States or systematically provide military resources to al Qaeda in the war against the United
States.” Third Suppl. Factual Return at 4 (emphasis added) (cleaned up). If the court were to read
the 2012 NDAA such that the actions of a member of an associated force could be double counted
as actions that make him a member of al Qaeda, the “part of” al Qaeda prong “alone{}] would do
all the necessary work” in the 2012 NDAA. Hibbs v. Winn, 542 U.S. 88, 101 (2004). That is,
there would be no need to detain an individual under the associated force doctrine because all
members of the associated force who assisted al Qaeda in any way would be detainable as part of
al Qaeda. Such a construction is disfavored because it would make the statute’s inclusion of
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associated forces “insignificant,” Bombardier Corp., 380 F.3d at 499 (internal quotation marks
omitted).
Respondents resist this conclusion and argue that there is not complete overlap between
members of al Qaeda and members of an associated force. Instead, they suggest, there are three
relevant categories—or “buckets”—of associated force members that should guide the court’s
inquiry here. This rubric is cut from whole cloth, but the court nevertheless considers it. In the
first “bucket,” Respondents say, using HIG as an example of an associated force, there are HIG
“members doing HIG things for HIG purposes” exclusively—that is, members of an associated
force who do not take part in the associated forces’ activities on behalf of al Qaeda. May 12, 2021
Hr’g Tr. (PM) at 4:23-24. The second bucket consists of HIG “members doing HIG things for
[a]i-Qaeda purposes.” /d. at 4:24-25. And the third and final bucket is HIG “members doing
al-Qaeda things for [a]l-Qaeda purposes.” /d. at 5:1-2. According to Respondents, Gul falls into
either the second or third bucket. Under Respondents’ theory of the case, individuals falling into
the first bucket—associated force members doing things on behalf of the associated force for the
associated force’s own purposes—are detainable for being part of “associated forces” but would
not be detainable for being part of al Qaeda. That means, Respondents offer, that simply applying
the functional test to an individual who Respondents concede is a member of an associated force
would not create complete overlap between the associated force prong and the primary force prong:
the associated force prong would still retain meaning because it would give the government the
authority to detain members of an associated force who did not assist al Qaeda.
The court agrees that, hypothetically, Respondents might seek to detain an individual who
is eligible for detention solely on the basis of his membership in an associated force. Take, for
example, a HIG trainee who is captured in a training camp before ever engaging with coalition
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forces. Such a person theoretically could be detained solely for his membership in HIG, even
though he never directly acts to support al Qaeda. There is thus some daylight between associated
forces and primary forces in Respondents’ proposed application of the statute—though
Respondents have been unable to identify a case in which this daylight was on display or was
applied to a HIG or other associated force fighter. But even if detention could in some cases be
justified based exclusively on membership in an associated force, Respondents’ double-counting
theory in this case runs aground on the law-of-war principles of cobelligerency that Respondents
claim inform the associated force doctrine.
2. Associated Force Doctrine
Recall that Respondents have argued that an “associated force” is analogous to a
cobelligerent in a traditional international war. In an article cited by Respondents for its definition
of cobelligerency, professors and former Bush administration officials Curtis Bradley and Jack
Goldsmith explain the types of activities that a force undertakes to become associated with
al Qaeda:
Terrorist organizations that act as agents of al Qaeda, participate
with al Qaeda in acts of war against the United States, systematically
provide military resources to al Qaeda, or serve as fundamental
communication links in the war against the United States, and
perhaps those that systematically permit their buildings and
safehouses to be used by al Qaeda in the war against the United
States, are analogous to co-belligerents in a traditional war.
Bradley & Goldsmith, supra, at 2113; see also Frank M. Walsh, An Enemy by Any Other Name:
The Necessity of an “Associated Forces” Standard that Accounts for al Qaeda’s Changing Nature,
32 Ariz. J. Inv’) & Comp. L. 349, 361 (Summer 2015) (noting duties of neutrality “require neutral
states, inter alia, to refrain from participating in acts of war by the belligerent, supplying war
materials to a belligerent, permitting belligerents to use its territory to move troops or munitions,
or establishing wartime communication channels”). These activities that signify association
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between forces are strikingly similar to the types of activities that the D.C. Circuit has held make
someone “part of al Qaeda. See e.g., Al-Madhwani, 642 F.3d at 1075 (staying at an al Qaeda
guesthouse or training camp); Uthman, 637 F.3d at 404 (being captured in areas frequented by
al Qaeda or Taliban members); Al-Adahi v. Obama, 613 F.3d 1102, 1106 (D.C. Cir. 2010) (using
travel arrangements procured by a known al Qaeda affiliate); Awad, 608 F.3d at 9 (being accepted
by a group of al Qaeda fighters). And in fact, Respondents themselves argue that mere
“association with members of enemy forces has factored into numerous Court of Appeals’
decisions upholding the detention of Guantanamo detainees.” Resp’ts’ Resp. at 6 (emphasis
added) (citing Alsabri v. Obama, 684 F.3d 1298, 1301 (D.C. Cir. 2012); Ali, 736 F.3d at 546;
Khairkhwa v. Obama, 703 F.3d 547, 550 (D.C. Cir. 2012); Al-Adahi, 613 F.3d at 1107; Barhoumi
y, Obama, 609 F.3d 416, 425 (D.C. Cir. 2010); Uthman, 637 F.3d at 404).
This overlap between actions that render an individual part of a force and actions that
associate two forces is of no moment when an associated force is still engaged in active hostilities.
In that case, as a practical matter, it makes no difference if the detainee is considered part of
al Qaeda or part of the associated force-——he is detainable. But where the detainee is a member of
an associated force that has declared peace, the calculus changes. The act of declaring peace has
legal significance, and a member of such a force should benefit from that legally significant act.
Put differently, if a detainee joined the fight in support of an associated force, the associated force’s
withdrawal should presumptively constitute the detainee’s withdrawal from hostilities as well. To
accept Respondents’ position that an associated force member’s cobelligerent acts count equally
toward membership in the primary force would mean that the cobelligerent would not be
withdrawn from hostilities until the primary force withdraws. He would be considered part of the
primary force so long as that force remained engaged in hostilities, unless he personally took
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additional, affirmative steps to disassociate from the primary force. That result, as discussed
below, cannot be squared with the law of war.
Respondents’ approach also would lead to an anomalous result. The associated force
member who is captured without ever engaging in associated force activities—a “bucket one”
fighter under Respondents’ rubric—would benefit from a peace agreement because he could not
be considered a part of the primary force. His detention eligibility would rise or fall depending on
whether the associated force is at peace. But the associated force member who actually engaged
in cobelligerent activities—who did the things that make two forces associated—would not benefit
from a peace agreement because, according to Respondents, his actions under the functional test
also would have made him “part of” the primary force. A declaration of peace for such a fighter
would make no difference. That outcome makes little sense.
Viewed in this light, Respondents’ theory of the case contradicts the straightforward
principle that cobelligerents do not lose their separate identity merely by joining the fight with
another force. Respondents concede that their theory erodes the separate identities of
cobelligerents. During the evidentiary hearing, while arguing that Gul is detainable because of his
assistance to al Qaeda, Respondents argued that if a British soldier fought alongside American
forces in World War IT and was captured by German forces, that British soldier would remain
~ detainable due to his assistance to American forces if Britain ceased hostilities before America
did. May 28, 2021 (PM) Hr’g Tr. at 42:3-13. That is, Respondents suggested that Britain’s
withdrawal from active hostilities would not affect the ability of German forces to detain a British
soldier who had assisted American forces. But Respondents have cited absolutely no authority to
support this proposition, and law-of-war principles, in fact, state the opposite.
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Pursuant to the Geneva Conventions, “[p]risoners of war shall be released and repatriated
without delay after the cessation of active hostilities.” Geneva Convention Relative to the
Treatment of Prisoners of War art. 118(1), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135
[hereinafter Geneva Conv.]. The commentary to the Geneva Conventions makes clear that “{t]he
obligation to release and repatriate prisoners of war arises as soon as active hostilities between the
Detaining Power and the Power on which the prisoners depend have ceased.” Int’]| Comm. of the
Red Cross, Commentary of 2020 on the Third Geneva Convention, art. 118, at C.2, 4452, http://ihl-
databases.icrc.org/applic/ihl/ihl nsf/Comments.xsp?action=openDocument&documentid=2E238
4&30078EF5DC125858500426E02 (last visited Oct. 6, 2021) [hereinafter Article 118
Commentary]. That is true even though “{a]ctive hostilities might . .. cease bilaterally between
two belligerent Parties[{] before the general close of military operations and even though active
hostilities continue with other Parties to the conflict.” Id. at 4454 (emphasis added). Even ifa
force’s allies or associates continue fighting, once “the Power on which the prisoner[] depend[s]”
has withdrawn from active hostilities, the duty to repatriate is triggered. /d. at 4452. Respondents
purport to embrace such law-of-war principles as informing the scope of the associated force
inquiry, see Third Suppl. Factual Return at 3—4 (citing Geneva Conventions), but the law of war
does not condition the duty to repatriate on the detainee having refrained from providing any
assistance to its still-belligerent allies. Nor does it require a detainee to affirmatively disavow
those allies. And, recall, the 2012 NDAA expressly authorizes detention of “covered persons .. .
pending disposition under the law of war,” suggesting that these law-of-war principles are prudent
considerations for interpreting the 2012 NDAA. Pub. L. No. 112-81, § 1021(a), 125 Stat. at 1562.
Respondents’ position that Gul’s actions as a member of HIG also made him “a part of” al Qaeda
is therefore firmly at odds with the Geneva Conventions and the “law of war.”
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That leaves the court in the position of determining a framework for analyzing whether
Gul, who is no longer detainable as part of an associated force, is nevertheless detainable as part
of al Qaeda. No court previously has confronted such an issue. Bearing in mind the construction
of the 2012 NDAA and law-of-war principles, this court believes it is appropriate to start with the
presumption that a detainee who is acknowledged to be a member of an associated force and
engages in traditional acts of cobelligerency does so in his capacity as a member of an associated
force. To prove that an associated force fighter whose force is at peace is still detainable as part
of the primary force, the government must prove by a preponderance of the evidence that the
person exceeded the scope of the cobelligerency and, in so doing, effectively acted as a member
of the primary force. This approach matches the construction of the detention authority codified
in the 2012 NDAA: it mirrors the text by recognizing a separate detention authority for members
of associated forces and members of al Qaeda and the Taliban. See Pub. L. No. 112-81,
§ 1021(b)(2), 125 Stat. at 1562. And it maintains fidelity to the principles of cobelligerency that
have traditionally informed the Executive’s approach to detaining members of associated forces
by recognizing that allied forces maintain separate identities. See Article 118 Commentary at C.2,
4452. At the same time, the approach is responsive to the potentially fluid affiliations of
combatants in the War on Terror in that it recognizes the potential for some members to switch
affiliations midstream. Cf Resp’ts’ Resp. at 11 (noting the conflict in Afghanistan “has involved
and continues to involve multiple, resilient, non-state armed groups, including groups with volatile
histories, complex interactions, and separate agendas”).
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B. Exceeding the Scope of the Cobelligerency
The court therefore considers whether Respondents have overcome the presumption that
Gul’s actions were taken in his capacity as a member of HIG by showing that his assistance to
al Qaeda exceeded the scope of HIG’s cobelligerency. Respondents have argued that Gul
exceeded the scope of HIG’s cobelligerency with al Qaeda in two ways. First, they argue that Gul
engaged in activity that HIG had not agreed to undertake in support of al Qaeda—that is, they say
that Gul’s actions went beyond the organization’s limited commitment to al Qaeda. Second, they
argue that Gul was not authorized by HIG to take the actions he did in support of al Qaeda—that
is, they argue that Gul exceeded his prescribed role in the alliance by taking additional action to
support al Qaeda. The court considers each basis in turn.
i, Scope of HIG’s Alliance with al Qaeda
To determine whether Gul’s actions went beyond the scope of HIG’s alliance with
al Qaeda, the court must first ascertain the scope of HIG’s cobelligerency with the primary force.
Despite bearing the burden of proof on this matter, Respondents’ arguments on this point have
been less than a model of clarity. Their briefing does not attempt to define the scope of the
cobelligerency, and their position at oral argument was evolving. At one point, Respondents
argued that the type of facilitation Gul undertook in 2002 in Nangarhar Province would not have
exceeded the scope of the cobelligerency between HIG and al Qaeda (although they maintained
Gul was not personally authorized to undertake the facilitation by HIG leadership). See May 20,
2021 (AM) Hr’g Tr. at 24:10-14. But by closing argument, Respondents appeared to have
abandoned that position and instead argued that HIG’s cobelligerency with al Qaeda was limited
2021 (AM) Hr’g Tr. at 34:21-35:3. According to Respondents, when “al-Qaeda stopped providing
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financial or military support to HIG, which [Gul] says... would have ended in late 2002, then
HIG was no longer getting any benefit from al-Qaeda” and “all of the facilitation that Petitioner
did that was . . . getting al-Qaeda people back into Afghanistan, starting in the summer of ’02 and
going forward, that would not be part of the co-belligerency between HIG and al-Qaeda.” /d. at
30:2—12 (emphasis added).
The court is not persuaded that the affiliation between HIG and al Qaeda was so
circumscribed. For starters, Respondents base their contention that the cobelligerency between
HIG and al Qaeda was mee just two
facts in the record: (1) Gul’s statement to interrogators that bin Laden stopped providing money
to HIG at some point in 2002, id. at 28:4-29:9, 30:2—6, and (2) the absence of any description of
HIG facilitation post-dating 2002 in declarations submitted as evidence in this case, id.
at 40:3-41:2. As to Gul’s statement, however, there is no evidence that HIG stopped assisting
al Qaeda because bin Laden stopped making payments to the organization. See JE 89, at 684.
Petitioner’s statement was that al Qaeda stopped financially supporting HIG, not that HIG stopped
supporting al Qaeda altogether. See id. And, while Respondents contend that the record does not
contain any descriptions of HIG facilitation post-dating 2002, the record actually suggests
otherwise. Respondents presented the 2008 declaration of EE wich states that
JE 13, at 126 (emphasis added). Even if the declarations were silent, though, Respondents bear
the burden to establish the scope of the cobelligerency, and an absence of evidence is not
compelling proof in establishing the boundaries of H!G’s relationship with al Qaeda.
Other record evidence, though sparse on details, suggests a far more capacious alliance
between HIG and al Qaeda. Public statements from Hekmatyar support that conclusion. An article
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from The Times in the United Kingdom, on December 26, 2002, reports Hekmatyar’s stating that
“his fighters were aligned to defeated Taliban and al-Qaeda fugitives.” JE 370, at 3173. Referring
to Afghan jihadists, Hekmatyar further stated, “We are together,” and “Hezb-e-Islami will fight
our jihad until foreign troops are gone from Afghanistan and Afghans have set up an Islamic
government.” /d. (internal quotation marks omitted). Hekmatyar confirmed the alliance four years
later. In November 2006, Hekmatyar told a different news source, “We issued clear instructions
to the Mojaheddin in Hezb-e Eslami to help anyone acting against the occupations in their areas.”
JE 218, at 1548. He continued, “I admit to you, as head of the Hezb-e Eslami organization here,
that there is not, very unfortunately, comprehensive and full coordination in all the fields and fronts
with ‘Al-Qa’idah’ and Taleban at the leaders’ level though this is present at the individuals’ level
in the various areas and we back it and wish it to spread and broaden.” /d. These statements
suggest that, at least at the field-commander level, HIG endorsed full coordination with al Qaeda
in fighting against the U.S.-led occupation of Afghanistan. And the field-commander level is
precisely where Gul operated.
Relying on the declaration that Gul provided from HIG-expert Christopher Sands,
Respondents cast Hekmatyar’s statements aside as “political showmanship,” arguing that HIG had
limited resources and thus a limited capacity to join al Qaeda. See May 28, 2021 Hr’g (AM) Tr.
at 41:6-15. But Respondents ask the Sands declaration to bear too much weight. Sands explains
that, by 2006, much of “Hekmatyar’s rhetoric was political showmanship” due to resource
constraints. JE 304, at 2536. This suggests that Hekmatyar was overstating HIG’s ability to assist
al Qaeda, but it does not refute that cooperation between HIG and al Qaeda was nonetheless
ongoing and, importantly, sanctioned by HIG leadership. In fact, the Sands declaration refers to
“two decades of often close cooperation between the two groups,” including sheltering bin Laden
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during the United States’ manhunt. /d. And nowhere does Sands endorse Respondents’ theory
that cooperation between HIG and al Qaeda was limited to extricating al Qaeda fighters from
Afghanistan in 2001 and 2002 and effectively ceased after bin Laden cut off financial support to
HIG.
Given Respondents’ failure to marshal evidence contradicting Hekmatyar’s broad
statements that HIG had joined the fight alongside al Qaeda through at least the time of Gul’s
capture, the court concludes that for purposes of Gul’s detention, HIG’s mission—and, by
extension, Gul’s——was co-extensive with al Qaeda’s in fighting against the U.S.-led occupation of
Afghanistan. Respondents therefore have failed to show that Gul’s actions exceeded the scope of
HIG’s cobelligerency with al Qaeda.
2. Scope of Gul’s Role in the Alliance
Respondents’ second, and more substantial, argument is that Gul exceeded the scope of the
cobelligerency by providing al Qaeda with more support than he was personally authorized to
provide as a HIG member. In other words, they contend, Gul did more for al Qaeda than HIG
permitted him to do and, by such actions, became a part of al Qaeda. To that end, Respondents
have presented a detailed list of evidence to support their position. In reviewing this evidence, the
court is cognizant that it should “not weigh each piece of evidence in isolation, but consider all of
the evidence taken as a whole.” Awad, 608 F.3d at 7; Al-Adahi, 613 F.3d at 1106 (reversing district
court that “tossed aside the government’s evidence, one piece at a time”). The court therefore
considers the evidence in the totality, but it is nonetheless compelled to explain the weaknesses in
this evidence and why, even in combination, it is inadequate to justify Gul’s continued detention.
a. Respondents’ Evidence of HIG Members’ Authority
Respondents draw on record evidence that they claim shows that Gul’s actions were not
authorized by HIG. May 20, 2021 (AM) Hr’g Tr. at 29:1-31:9. Some of this evidence gives shape
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to Respondents’ conception of the scope of individual HIG members’ authority and HIG’s
interaction with other organizations at a broader level, and the court therefore turns to that evidence
first.
According to Respondents, in order for Gul’s conduct in this case to have been within his
authorization from HIG, his actions must have been personally approved by Hekmatyar because
Hekmatyar “always approved major decisions” for HIG. May 12, 2021 (PM) Hr’g Tr. at 26:17-22.
They base this conclusion entirely on Gul’s statement that “[mJajor decisions are always finalized
by Gulbuddin, but the Nizamia Shura is authorized to conduct daily business autonomously.”
JE 87, at 671. In the same statement, Gul told interrogators that he “maintained a consistent,
written correspondence with Gulbuddin,” and “he could arrange a meeting with Gulbuddin .. . if
he were to suggest discussing any very important matter, such as high-level inter-organizational
liaison or the opportunity to court wealthy contributors.” fd at 672. Tying these three statements
together, Respondents argue that Gul needed to secure Hekmatyar’s imprimatur for HIG’s
facilitation of al Qaeda members into and within Nangarhar Province—-which Respondents
consider a high-level inter-organizational liaison—in order for such conduct to be within Gul’s
authorization as a member of HIG. See May 20, 2021 (AM) Hrg Tr. at 37:2—22; see also id.
at 30:6-14. The court disagrees.
To start, Respondents’ argument overlooks that Hekmatyar had already authorized the very
high-level inter-organizational liaison that they cite as beyond the scope of Gul’s authority: In
2002, Hekmatyar publicly stated that HIG was “together” with Afghan jihadists. JE 370, at 3173
(internal quotation marks omitted); see also Khan, 655 F.3d at 33 (affirming “finding that HIG
was associated with al Qaeda and the Taliban in late 2002”). Thus, under Gul’s articulation of
HIG’s leadership structure, his affiliation with al Qaeda would have been consistent with
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Hekmatyar’s “[mJajor decision{],” JE 87, at 671, that HIG would support al Qaeda. Respondents
have not presented any evidence that Hekmatyar required particular operations within HIG’s
broader organizational alliance with al Qaeda to receive his specific approval.
Nevertheless, Respondents suggest that Gul went rogue by supporting al Qaeda via means
that were not specifically endorsed by Hekmatyar. They suggest that Gul was assisting al Qaeda
under Hekmatyar’s nose because, according to
JE 13, at 126, and the better evidence is that Gul was not a field
commander who had distanced himself from Hekmatyar but instead was, at all relevant times,
deeply tied to and loyal to Hekmatyar. As Respondents note, Gul “maintained a consistent, written
correspondence with Gulbuddin that . . . endured” until his capture. JE 87, at 672. Indeed, Gul
traveled to visit Hekmatyar ° vee the battle of Tora
Bora and entertained a personal audience with him. JE 82, at 613. And, at the other end of the
timeline, “{jJust prior to” Gul’s capture, “Hekmatyar appointed him commander of” a new force
that was to consist of members “chosen based on youth, education, commitment, and loyalty to
Gulbuddin, and prior evidence of effectiveness and previous accomplishments.” JE 91, at 696.
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As part of the appointment, Gul was to “become a permanent member of HIG’s Nizamia Shura.”
Id. Thus, while ay have accurately stated
Respondents also argue that it was common for HIG members to secretly work for other
groups and interests, thereby making it plausible that Gul was also working for al Qaeda without
HIG’s knowledge. See May 20, 2021 (AM) Hr’g Tr. at 51:24—55:7. Gul told interrogators that
“{t}he military wing of HIG does not share its activities with the political wing, primarily because
of general suspicion that the Shura members may be working for other groups, interests and foreign
intelligence agencies, primarily Pakistani, Iranian and U.S.” JE 87, at 671. Respondents also rely
on evidence that, after reaching a peace deal with HIG in 2016, Afghanistan did not release HIG
prisoners with “active links to terrorist groups such as Al-Qaida,” and they argue this proves that
some HIG members affiliated with al Qaeda. JE 305, at 2546. The court accepts that Respondents
have identified evidence that some HIG members might have worked for other organizations, but
beyond that, it is frankly unclear what it is supposed to glean from these facts about Gul. At the
time of his capture, Gul was not a member of the Shura. See JE 87, at 671 (suggesting “Shura
members may be working for other groups” (emphasis added)). He is not accused of working for
Pakistani, Iranian, or U.S. interests. See id. And, as discussed, Gul’s ties to Hekmatyar were close
and enduring: in 2001, he was among a select few tasked by Hekmatyar with trying oi
es : 142, at 972, and, at the time of his capture in February 2007, he was
being considered for a senior leadership position within HIG, JE 91, at 696. The record simply
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does not support Respondents’ theory that Gul was a double agent or secretly harbored loyalties
to al Qaeda.
Relatedly, Respondents have suggested that Gul knew so many high-level al Qaeda
members that he must have been a member of al Qaeda. They have identified a veritable laundry
list of high-level al Qaeda operatives that Gul either knew or had information about. See May 13,
2021 (PM) Hr’g Tr. at 23:18-53:1. While normally “association with other al Qaeda members is
itself probative of al Qaeda membership,” Uthman, 637 F.3d at 405, Gul’s association with
al Qaeda members is not dispositive because Respondents have not proven that Gul would not
have associated with these al Qaeda members in his capacity as a field commander of an associated
force. That is, if the court were merely applying the functional test to Gul’s conduct, then these
relationships would be of great significance. But because Respondents must prove that Gul
exceeded the scope of HIG’s cobelligerency, a different evidentiary showing is required, and
Respondents have not presented evidence that Gul’s al Qaeda contacts were anything more than a
consequence of his role as a HIG operative.
b. Gul’s Specific Conduct
Respondents have also argued that the specific facilitation that Gul undertook for al Qaeda
was beyond the scope of his membership in HIG. There are essentially three timeframes in which
Respondents contend Gul was improperly supporting al Qaeda: (1) the 2002 facilitation of
al Qaeda operatives in Nangarhar Province, (2)
ae ::: (3) his reported affiliation with al Qaeda operatives in 2006. The court
takes each in turn.
i. 2002 Facilitation
Respondents’ first argument that Gul exceeded the scope of his authority as a member of
HIG concerns his role in a group of HIG members who facilitated for al Qaeda in Nangarhar
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Province in 2002. Gul began working with HIG members who were led by Maulawi Humdullah,
“the HIG commander responsible for Nangarhar Province” shortly before the U.S. invasion of
Afghanistan. JE 100, at 747. Maulawi Humdullah associated with al Qaeda member Hajji Abdul
Ahad, who approached Maulawi Humdullah’s unit “about facilitating Arabs associated with
Mohammad Rahim,” another al Qaeda operative, in Nangarhar Province. Jd Maulawi
Humdullah, Hajji Ahad, and Gul agreed that Maulawi Humdullah’s HIG unit would facilitate
ai Qaeda operatives, and their unit subsequently moved four Arabs and one Tajik into Nangarhar
Province. /d. Thereafter, HIG members in Maulawi Humdullah’s unit, including Gul, couriered
for the al Qaeda operatives. /d. Through this facilitation, Gul formed a relationship with high-
level al Qaeda operative Hadi al-Iraqi. Id.Respondents argue that, despite HIG’s proclaimed alliance with al Qaeda, Gul’s
participation in this facilitation exceeded the scope of his authorization from HIG. They argue that
the facilitation was not “official” because Gul told interrogators that he was “unsure to what extent
Gulbuddin Hekmatyar was aware of this Arab facilitation by HIG members in Nangarhar.” JE 100,
at 747. Further, Gul said that he believed “that HIG facilitated the Arabs and Tajik in Nangarhar
Province unofficially at the direction of Maulawi Humdullah and Hajji Abdul Ahad.” fd.
(emphasis added). To give some color to what the word “unofficial[]” might mean in this context,
Respondents point to another of Gul’s statements: after telling interrogators that there was
“virtually no cooperation between the” Taliban and HIG, Gul explained that “through his control
of HIG operations in Nangarhar,” he “established some unofficial liaison with [Taliban] forces
there, under Anwar Al-Haq Mujahed.” JE 89, at 684 (emphasis added). Thus, Respondents argue,
“the words ‘unofficial liaison’ refer to a relationship that was neither in HIG’s interests, nor
undertaken in Petitioner’s capacity as an HIG commander,” and the same definition of “unofficial”
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should apply to Gul’s facilitation of al Qaeda in Nangarhar. May 12, 2021 (PM) Hr’g Tr.
at 33:6—13.
There are two primary flaws with this logic. To begin, Respondents’ proposed definition
of “unofficial” is simply not supported by the interrogation report on which they rely. While the
report does refer to Gul’s “unofficial liaison” with the Taliban, it simultaneously makes clear that
Hekmatyar was aware of Gul’s association with the Taliban. Gul’s contact in the Taliban was
Anwar Al-Haq Mujahed, and when Mujahed’s father died, “Gulbuddin sent at least two letters to
[him], offering his condolences to him on the death of his father.” JE 89, at 684. Critically, Gul
“delivered the letters personally” to Mujahed’s second in command and cousin. [Id Whatever
“unofficial” means to Gul, it strains credulity to believe that it means contrary to HIG’s interests
if Hekmatyar, the leader of HIG, was not only aware of Gul’s liaison with a Taliban commander
but took advantage of that liaison to send a personal letter. Respondents’ example therefore
suggests that by referring to the “unofficial” liaison between HIG and al Qaeda in Nangarhar, Gul
did not mean that the operation was illicit and covert.
Next, Respondents’ theory that Gul’s actions were not authorized because the facilitation
was unofficial and that Hekmatyar was not fully apprised of the cooperation occurring in
Nangarhar is hindered by the fact that Gul entered the facilitation-—which, of course, occurred not
long after Hekmatyar declared an alliance between HIG and al Qaeda—upon the order of his HIG
commander, Maulawi Humdullah. See JE 100, at 74] (noting “Maulawi Humdullah was the HIG
commander responsible for Nangarhar Province”); JE 93, at 708 (noting Maulawi Humdullah was
“a friend and HIG associate, as well as then-leader of the detainee’s student group”). The entire
facilitation was conducted under HIG auspices: the facilitation in Nangarhar arose from Maulawi
Humdullah’s relationship with Hajji Ahad, Maulawi Humdullah participated in the relocation of
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al Qaeda members and couriering for al Qaeda members pursuant to the facilitation, and the
facilitation took place “at the direction of Maulawi Humdullah and Hajji Abdul Ahad.” JE 100,
at 747, Gul was thus acting pursuant to orders from a HIG commander who was directing a
facilitation for al Qaeda, an organization with which HIG’s leader had publicly declared an
alliance. Given these facts, the weight of the evidence simply does not support Respondents’
contention that this conduct was beyond Gul’s authority within HIG.
Respondents have one more rebuttal on this point: they argue that Maulawi Humdullah
himself did not have the authority to carry out the 2002 facilitation in Nangarhar. May 12, 2021
(PM) Hr’g Tr. at 28:12-25 (‘Maulawi Humdullah, back in 2002 when he held the very same
position, would not have had authority to make decisions for HI{G].”). But again their evidentiary
support for this position is less than sturdy. In his prepared declaration, Gul said that, when he
was commander of HIG in Nangarhar in 2004, he was approached by al Qaeda about setting up a
facilitation between al Qaeda and HIG but “did not have the authority to make decisions for
HYG.” JE 301, at 2508. Because Maulawi Humdullah had been in that same position as
commander of HIG in Nangarhar when he began the facilitation with al Qaeda in 2002,
Respondents argue that Maulawi Humdullah must also not have had the authority to begin the
2002 facilitation. See May 12, 2021 (PM) Hr’g Tr. at 28:18—29:5.
While there is superficial appeal to the idea that two people who hold the same position in
an organization might have similar authority, Respondents have not presented any evidence that
that is true with respect to Maulawi Humdullah and Gul. And there is reason to believe that
Maulawi Humdullah and Gul did not have equal stature in the HIG organization. Until his death,
Maulawi Humdullah held leadership positions over Gul, suggesting Maulawi Humdullah had
greater seniority and more clout in the HIG organization. For example, Maulawi Humdullah was
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Gul’s teacher and the leader of Gul’s student organization. JE 301, at 2507; JE 93, at 708. Indeed,
“Maulawi” “is an honorific Islamic religious title given to Sunni Muslim religious scholars” who
have typically “completed full studies in a madrassa (Islamic school) or Darul Uloom (Islamic
seminary).” Mawlawi (Islamic title), Academic Dictionaries & Encyclopedias, https://en-
academic.com/dic.nsf/enwiki/2327962 (last visited Oct. 6, 2021). This honorific and Maulawi
Humdullah’s multiple leadership positions over Gul suggest that Maulawi Humdullah simply
outranked Gul, regardless of whether they both held the same position, and Respondents have not
presented any evidence that Maulawi Humdullah’s superior authority would not carry with it
greater authority to make decisions for the HIG organization.
Moreover, the court cannot give the near dispositive weight that Respondents do to Gul’s
statement that he “did not have the authority to make decisions for HI[G].” JE 301, at 2508. The
statement on its face is ambiguous. As a HIG field commander, Maulawi Humdullah (and later
Gul) surely had the authority to direct his own men, and in that sense he made decisions for HIG.
But could he make policy decisions for HIG as a whole? That is doubtful, and perhaps that is what
Gul meant. Whatever the case may be, Gul’s statement that he lacked the authority to make
decisions “for HIG” is simply too feeble a ground to support the conclusion that Maulawi
Humdullah exceeded the scope of his authority by moving al Qaeda fighters into Nangarhar
Province and facilitating their presence there. Such actions, if anything, are entirely consistent
with traditional notions of cobelligerency. See Walsh, supra, at 362 (observing that third-party
groups “can aid in the conduct of an armed conflict in exactly the same way as third-party nations,”
such as “jointly attack[ing] targets, supply[ing] war materials to a belligerent, provid[ing]
belligerents with refuge and concealment, or establish[ing] communication channels to facilitate
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the belligerent’s continued operations”). The court is not convinced that it is more likely than not
that Maulawi Humdullah was not authorized to enter the 2002 facilitation with al Qaeda.
il. 2004 Agreement
Respondents’ next contention that Gul was part of al Qaeda rests
Gul has consistently maintained
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Respondents, on the one hand, claim
Gul, on the other hand, claims
ee : resolving this conflict, the court starts with the principle
ee: entitled to a “presumption of regularity,” which requires this “court to
treat the Government’s record as accurate.” Latif, 677 F.3d at 1180-81. That presumption does
not, however, “compel a determination that the record establishes what it is offered to prove.” /d.
at 1181. The court must determine for itself whether the content of the record is true. See Parhat
v. Gates, 532 F.3d 834, 847-48 (D.C. Cir. 2008). To do that, the court evaluates
“internal coherence as well as its consistency with uncontested record evidence.” Barhoumi, 609
F.3d at 428.
is in certain respects consistent with uncontested record evidence.
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These are certainly not insignificant similarities. See Barhoumi, 609 F.3d at 429 (finding
diary’s “lengthy and highly detailed descriptions of real-world persons, places, and events tend to
enhance the credibility of the diary as a whole”). But there is a conspicuous lack of evidence in
the record corroborating the single most important—and rigorously disputed—component of
On top of that gaping hole in the evidentiary record, Respondents have not presented any
In their briefing, Respondents argue
But these allegations decidedly do not show
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And in contrast to the dearth of evidence
Respondents have provided ample evidence
There are two more reasons that the court concludes
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There is nothing in the record to
Both parties likewise accept that
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Considering
the court finds it highly unlikely based on the evidence
before it And
Respondents have not identified any reason
The court is therefore unconvinced
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requires the court to rigorously examine ee
Pa court finds that Respondents have not shown that it is
more likely than not
It is therefore not more likely than no
Gul did not exceed the scope of his membership in HIG.
iil, 2006 Affiliation with al Qaeda Operatives
Finally, Respondents attempt to show that Gul exceeded the scope of his authorization with
HIG by contacting members of al Qaeda in 2006 and early 2007. See Resp’ts’ Resp. at 46-48.
While Gul has raised
legitimate concerns about the reliability of Respondents’ sources for many of Gul’s activities in
2006 and 2007, the court need not detain itself with a rigorous analysis of these sources. For even
if the reporting is true, Respondents have not prover ill
authorization from HIG to cooperate with al Qaeda.
Accordingly, while Gul may have po
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authorization as a member of a force associated with al Qaeda.
% E *
In conclusion, the court finds that Respondents have failed to carry their burden of showing
that Gul exceeded his role as a member of HIG on either the organizational or the individual level.
It therefore finds that Gul was not at any time “part of” al Qaeda.
C. Substantial Support
Finally, the court arrives at Respondents’ fallback position: if Gul was not “part of”
al Qaeda, then he “substantially supported” it, thereby allowing the United States to detain him.
See Resp’ts’ Resp. at 22; see also May 10, 2021 (PM) Hr’g Tr. at 6:3-5 (characterizing Gul’s
“substantial support to al-Qaeda” as a “second alternative basis for” detention). Gul parries this
contention with a legal argument. He maintains that detention under the “substantial support”
prong of the 2012 NDAA is reserved for a “narrow category” of individuals who are “civilians
authorized to accompany [a]rmed [florces,” May 10, 2021 (PM) Hr’g Tr. at 41:9-12, and he clearly
does not fit within that “narrow category.” The court agrees with Gul.
The 2012 NDAA does not define what a person must do to “substantially support[]
al-Qaeda.” See Pub. L. No. 112-81, § 1021(b\(2), 125 Stat. at 1562; ef Al-Bihani, 590 F.3d at 873
(noting uncertainty as to the “outer bounds” of “purposefully and materially supported” as used in
the Military Commissions Act}. In 2012, the Department of Justice laid out its interpretation of
the bounds of substantial support in a brief filed before the Second Circuit in Hedges v. Obama.
See Reply Br. at 10-11, Hedges v. Obama, Nos. 12-3176, 12-3644 (2d Cir. Dec. 20, 2012)
{hereinafter Hedges Br.]. The Department of Justice in Hedges turned to law-of-war treaties that
“set forth categories of persons who may be detained as prisoners of war, including ... a narrow
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category of individuals who are not part of enemy forces but who may nonetheless be detained.”
fd. It explained that:
[t]he substantial support concept, as properly informed by the law
of war, would include people whose support for al-Qaeda or the
Taliban makes them analogous to those who “accompany the armed
forces without actually being members thereof, such as civilian
members of military aircraft crews, war correspondents, supply
contractors, members of labour units or of services responsible for
the welfare of the armed forces.”
Jd. at 11-12 (quoting Geneva Conv. art. 4A(4)}. Thus, according to the Department of Justice’s
own understanding, substantial supporters are “civilian members” of crews that support armed
forces—they are notably not members of the armed forces. See id. (internal quotation marks
omitted) (arguing substantial supporters “accompany the armed forces without actually being
members thereof’ (emphasis added) (internal quotation marks omitted)).
The Department of Justice’s position in Hedges is consistent with the Geneva Conventions
and the commentary to the Geneva Conventions. Article 4 of the Geneva Convention (IID
contemplates that certain “[p]ersons who accompany the armed forces without actually being
members thereof” may be treated as prisoners of war. Geneva Conv. art. 4A(4). The commentary
to the Geneva Conventions emphasizes that individuals detained for their support of an armed
force are civilians. See Int?l] Comm. of the Red Cross, Commentary of 2020 to Geneva
Conventions, Article 4, at H.1, http://ihl-databases.icrc.org/applic/ihl/ihi nsf/Comment.xsp?action
=OpenDocument&documentid= 17968 13618 ABDA06C12585850057AB95 (last visited Oct. 6,
2021) (providing information regarding “[clivilian prisoners of war” and noting such civilians’
“proximity to the armed forces increases the risk of their being interned with combatants”). Such
civilians include persons who perform “services such as laundry, transportation, food and waste
removal” and contractors who are involved in “the development, maintenance and operation of
technologically advanced equipment of vehicles.” /d at H.2(a). Thus, under international law,
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the category of detainees that the Department of Justice has said is analogous to substantial
supporters under the 2012 NDAA is exclusively reserved for civilians who assist military forces.
Courts in the D.C. Circuit, at least factually, have relied on the “substantial support” prong
of the 2012 NDAA as legal justification to detain only civilians. In Al-Bihani, the D.C. Circuit
concluded that the petitioner was properly subject to detention under the support prong of a similar
statute because “[h]e worked as the brigade’s cook and carried a brigade-issued weapon.” 590
F.3d at 869, 873 (“Even assuming .. . that [Al-Bihani] was a civilian ‘contractor’ rendering
services, those services render Al-Bihani detainable under the ‘purposefully and materially
supported’ language” of the Military Commissions Act (citation omitted). Judge Friedman in
Paracha v. Trump applied the substantial support prong to “a successful Pakistani businessman”
who “provided financial and other support to members of the Taliban and Al-Qaeda.” 453
F. Supp. 3d 168, 171, 178-79 (D.D.C. 2020) (“The Court has determined that it need not interpret
the scope of the detention authority conferred by the ‘part of prong of the NDAA because the
Court concludes that Mr. Paracha has rendered substantial support to Al-Qaeda and the Taliban.”),
appeal filed, No. 20-5039 (D.C. Cir.). Additionally, in a now vacated decision of the D.C. Circuit,
the court considered the substantial support prong as applied not to a member of an enemy force
but to a prominent businessman with “contact with several known and suspected affiliates of Al
Qaeda and two associated terrorist organizations.” Ai Hela v. Trump, 972 F.3d 120, 127 (D.C. Cir.
'© The court is cognizant that the panel in Al-Bihani, whose decision pre-dates the 2012 NDAA that now governs the
United States’ detention authority, reached a decidedly different view of the role of international law in informing the
scope of the Executive’s detention authority over civilian supporters. See 590 F.3d at 873 (“We reiterate that
international law .. . dofes] not limit the President’s detention power in this instance.”). That holding, however, was
peculiarly disavowed by a majority of active members of the Circuit in an opinion concurring in the denial of the
petition for rehearing en banc. See Al-Bihani v. Obama, 619 F.3d 1 (2010) (mem.) (Sentelle, C.1, and Ginsburg,
Henderson, Rogers, Tatel, Garland, & Griffith, JJ.) (‘We decline to en banc this case to determine the role of
international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case
indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.”}. The D.C. Circuit
has not definitively addressed the role of international law in the intervening decade since declining to rehear 4/-8ihani
en banc.
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2020), reh’g granted & opinion vacated, Order, No. 19-5079 (D.C. Cir. Apr. 23, 2021). To be
sure, none of these cases grappled directly with the legal question of whether a member of an
associated force can be detained for providing substantial support to al Qaeda. But it is notable
that Respondents have cited no case invoking that prong for an associated force member.
Faced with this body of law, Respondents have added nuance to their definition of a
substantial supporter. They now argue that a person can provide substantial support to an armed
force so long as they are not a member of that armed force—meaning, perhaps conveniently here,
that even if an individual is a member of a different or associated force, so long as they are not a
member of the force they are accused of supporting, they are detainable as a substantial supporter.
May 28, 2021 (AM) Hr’g Tr. at 65:20-66:6 (““[Y]ou cannot be an enemy force vis-a-vis the force
that you are supporting ....”). That means, Respondents argue, that so long as Gul was not a
member of al Qaeda, he could still be detainable for supporting al Qaeda, even if he was a member
of HIG.
There are two problems with this interpretation. First, it is entirely without support in the
law. Respondents have not identified any law-of-war principle, or any court case, to support this
construction, nor have they identified a case where the government has even articulated this
position before. Second, Respondents’ position that Gul could be a substantial supporter of
al Qaeda would yet again collapse the three distinct bases for detention in the 2012 NDAA—this
time collapsing the distinction between a member of an associated force and a substantial supporter
of a force. Respondents seek to use Gul’s same conduct that is prototypical of an associated
force—“moving around letters,” “moving around funds,” “ushering al-Qaeda leaders back and
forth,” id. at 72:4-10—+to establish that he provided substantial support to al Qaeda. The court
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declines for a second time to endorse an interpretation of the 2012 NDAA that so muddles the
three distinct bases for detention without any legal authority counseling such an approach.
Consistent with the Department of Justice’s position in Hedges and the Geneva
Conventions, the court interprets the Executive’s authority to detain an individual on the basis that
he substantially supported al Qaeda to be limited to “a narrow category of individuals who are not
part of enemy forces but who may nonetheless be detained.” Hedges Br. at 11. Because
Respondents concede that Gul was a member of HIG, an associated force of al Qaeda, he was at
all relevant times a member of an enemy force, and not a civilian, and therefore cannot be detained
on the basis that he substantially supported al Qaeda.
Vi. CONCLUSION
For the foregoing reasons, the court determines that Respondents have not proven by a
preponderance of the evidence that Gul remains detainable under the 2012 NDAA. The court
therefore grants Gul’s Petition for Writ of Habeas Corpus, ECF No. 1.
A separate final order accompanies this Memorandum Opinion.
Date: October 18, 2021 Ae wn
bee ae
7 Amil Po Mehta
United States District Court Judge
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