Biden Won't Free The Last Two Afghans at Guantanamo Bay

Edited by Sam Thielman

REGARDLESS OF MY WARNINGS that we’re not really at the end of the Afghanistan war, that is the position of the Biden administration. It is a position that carries certain obligations.

In May, for the Daily Beast, I reported on the final two Afghans who remain caged at Guantanamo Bay, Asadullah Haroon (sometimes also called Haroon al-Afghani) and Muhammad Rahim. If you read that article, you may recall that the base rationale undergirding their detention is that they, under the Law of Armed Conflict, are combatants in a war that is now over. You may also recall that early in the War on Terror, a wave of justification held that Guantanamo wasn’t really indefinite detention, since someday the war would end.

Well, by the president’s own words, someday is here. And yet Haroon and Rahim will not be free men, according to a senior administration official.

“Both Afghan detainees are held under law of war detention and the possibility of their release is subject to the determination of the Periodic Review Board,” the senior official said. “The Biden Administration continues to conduct a deliberate and thorough process focused on responsibly reducing the detainee population and ultimately closing the Guantanamo facility.”

Ah, the Periodic Review Board, that bureaucratic mechanism to wrap the prerogatives of continued detention inside something that appears, because there are lawyers involved, to have the patina of law. “Law of war detention” keeps combatants off the battlefield until hostilities end. Hostilities have, unfortunately for that patina of law, ended, and the Biden administration is choosing to have its hands tied by its own bureaucracy. The prerogative to detain without charge is even stronger than the desire to wage the war.

And there are always ways to lawyer around the obligation to release detainees at the conclusion of hostilities.

When it comes to Rahim, whom the CIA tortured – and whom Langley presumably doesn’t want talking about that torture – the Justice Department, Biden’s Justice Department, continues to challenge his release in federal court. So it’s just not true that the PRB determines his fate.

With Haroon, as I reported in May, the government recently introduced a novel assertion: he’s a member of al-Qaeda. It so happens that such an assertion carries the prospect of moving Haroon from the category of Afghan Detainee Releasable at The End of Hostilities in Afghanistan That Have, by The Government’s Account, Ended and into the category of Al-Qaeda Detainee Releasable at The End of Hostilities That Won’t End.

Haroon’s legal team feels “more than usually hopeful” that the PRB will clear him whenever it next meets to consider his case. But, contra the senior administration official, they’re skeptical that a PRB-ordered release will be determinative.

“His habeas [case] result may take a little longer but is also pending,” said Shivan Sarin, deputy director of Reprieve US, a human rights group aiding Haroon’s case. “If he wins – would be the first time for a decade but he has an exceptionally strong case –  then the Biden administration will have to decide whether to appeal, to protect their legal justification for indefinite detention without charge by keeping this prisoner of a war that is long over in jail, forever.”

In the end, the relevant considerations are not legal, not security-based and certainly not ethical. They’re whether an administration is willing to free people because their war is over, knowing that performing such a bare-minimum obligation will subject it to demagoguery. But fear is a holding pattern. Only by confronting demagoguery can it be defeated.

The story of liberal complicity in the War on Terror, the title of Chapter 3 of the critically acclaimed REIGN OF TERROR and a major theme throughout, is about avoiding that confrontation. But every day is another opportunity to break the cycle. Doing so starts by remembering their names: Asadullah Haroon and Muhammad Rahim, men who remain unjustly detained at Guantanamo Bay based on dishonest explanations and a bureaucratic process that occupies the territory formerly held by the law.

SHORT NEWSLETTER TODAY. One consequence of the book being so incredibly well received – really beyond my wildest expectations, and something for which I am very grateful – is that people want to interview me about it, so my time is a bit crunched. I’m also working on Forever Wars’ 9/11 Week coverage, something I intend to be ambitious – I started work on it before I launched the newsletter – and reported. We had three newsletters last week, so if this is the last one this week, I tried to tide everyone over.

This is where I remind you to please buy a subscription. All the posts so far have been available to nonsubscribers. That’s going to start to change. I’m going to keep the reported pieces free, but behind the paywall will be some more experimental stuff. It’s hard to explain. In some cases, subscribers will get material that I can really only describe as dreams of mine that have somehow come true. And also, in all honesty, some emotionally raw stuff.

Vague and intriguing, no? Subscribe and you won’t miss these things.