The United States has held Asadullah Haroon Gul, also known as al-Afghani, at Guantanamo Bay for 11 years. In an Oct. 10 court filing, as part of litigation arising out of al-Afghani’s 2016 petition for habeas corpus, the government amended the legal basis for Afghani’s detention. This post details the change in position, placing it in context of Afghani’s detention and American detention policy more generally.

Who is al-Afghani?

According to the detainee assessment leaked by WikiLeaks (and available on the Miami Herald’s website), Afghani was captured by Afghan forces nearby Nangarhar Province in February 2007. He was soon transferred to American custody and brought to Guantanamo Bay in June of that year. According to the United States, Afghani had been a courier for senior Qaeda leadership and a senior commander in Hezb-e-Islami Gulbuddin (HIG)—a terrorist organization based out of Afghanistan, which largely re-emerged in the region following the fall of the Taliban in 2001.

The United States considers Afghani a “high risk” detainee, likely to pose a threat if released. In addition to serving as a high-ranking commander of HIG, the government claims, Afghani “served as a courier and facilitator for [al-Qaeda] from 2002 to 2004.” Furthermore, the government understands him to be an expert on improvised explosive devices, or IEDs, having likely planned attacks on coalition forces and facilitated al- Qaeda attempts to do the same. Lastly, Afghani has been deemed to be of “high intelligence value” because of information he has provided on al- Qaeda’s “structure and operations” as well as its affiliations with other regional extremist organizations.

It’s worth flagging that Afghani rejects this characterization. He insists that he was never a member either of HIG or al-Qaeda. Al Jazeera has suggested that the United States has the wrong guy.

In any event, the United States has decided not to charge Afghani and instead has held him pursuant to the 2001 authorization for the use of military force, citing his activity on behalf of HIG and lQaeda. Before delving into how that rationale has now changed, at least for litigation purposes, it’s useful to first detail briefly the general legal basis behind Afghani’s detention.

Membership and Associated Force Detention

The 2001 AUMF gives the president the authority 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.” Following Hamdi v. Rumsfeld, the Supreme Court made clear that the AUMF’s grant to use “all necessary and appropriate force” included sanctioned the detention of an enemy combatant who was a member of the Taliban.

Lower court decisions later confirmed that the AUMF also authorized detention of members of al-Qaeda, whether captured inside or outside of Afghanistan. What’s more, federal courts also explained that the AUMF extends to members of organizations that are associated with the Taliban or al-Qaeda. (For a more complete analysis of the below, see Chapter 10 of Jack Goldsmith and Curtis Bradley’s Foreign Relations Law or Bobby Chesney’s article “Who May Be Held? Military Detention Through the Habeas Lens.”) The U.S. government considers HIG to be an “associated force” of al-Qaeda and the Taliban, and the D.C. Circuit affirmed this designation in 2011.

In order to distinguish between an “associated force” and an organization merely sympathetic toward the goals of the Taliban or al-Qaeda, courts have notably turned to the law-of-war notion of “co-belligerents.” Consider, for instance, the D.C. Circuit’s ruling in Hamlily v. Obama:

In addition to members of al Qaeda and the Taliban, the government’s detention authority also reaches those who were members of “associated forces.” For purposes of these habeas proceedings, the Court interprets the term “associated forces” to mean “co-belligerents” as that term is understood under the law of war. The government itself advocates this reading of the language. A “co-belligerent” in an international armed conflict context is a state that has become a fully fledged belligerent fighting in association with one or more belligerent powers. One only attains co-belligerent status by violating the law of neutrality — i.e., the duty of non-participation and impartiality. If those duties are violated, then the adversely affected belligerent is permitted to take reprisals against the ostensibly neutral party. This is also consistent with historical practice in the United States. Accordingly, the government has the authority to detain members of “associated forces” as long as those forces would be considered co-belligerents under the law of war.

There is not a comprehensive list of all entities considered an “associated force” under the AUMF. (For an analysis of a possible recent extension to al Mourabitoun in Niger, see here.)

Along with the question of whether an organization constitutes an associated force, there is also the issue of whether the individual in question is “part of” or a “member of” that organization—or of the Taliban or al-Qaeda. Here, courts have adopted a functional test. The D.C. Circuit sketched out its contours in its 2010 decision Bensayah v. Obama:

Although it is clear al Qaeda has, or at least at one time had, a particular organizational structure, the details of its structure are generally unknown, but it is thought to be somewhat amorphous. As a result, it is impossible to provide an exhaustive list of criteria for determining whether an individual is “part of” al Qaeda. That determination must be made 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. 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; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it, but the purely independent conduct of a freelancer is not enough.

Among these “common indicia,” courts have looked to a wide range of factors, including the following: attendance at an organization’s guest house or training camp; suspicious travel patterns; use of certain weapons; association with a fighting unit; among many others.

Detaining al-Afghani

As noted above, the United States has detained al-Afghani on the basis of his status as a commander of HIG as well as his activities on behalf of al-Qaeda. In 2016, Afghani filed a habeas petition challenging these premises on factual grounds. The same year, coincidentally, HIG signed a peace agreement with the Afghan government.

Last June, Afghani filed a request for a hearing to argue that the parties should be required to brief the significance of this development. In particular, Afghani maintained that the D.C. Circuit should determine two threshold issues before considering the government’s allegations of Afghani’s connections to al-Qaeda. First, it should determine “[w]hether or not an organization that was previously designated an associated force no longer qualifies as an associated force upon its entrance into a peace agreement with the relevant allied government.” Second, it should determine, “[i]f so, whether or not former membership in an organization that is no longer an associated force can continue to serve as a legal basis for detention under the AUMF.” If the court were to find that HIG was no longer an associated force, the government would then have to rely only on its claims that Afghani was “part of” al-Qaeda in litigating his continued detention.

At first, the United States opposed this proposal, reasoning it was an unnecessary added step to the habeas proceedings and would ultimately complicate discovery. Last week, however, the government changed its position and withdrew its reliance on Afghani’s membership in HIG as a legal justification for his detention. While affirming that Afghani’s work on behalf of that group often would remain relevant—namely, because that information would contextualize or demonstrate his work on behalf of or in support of al-Qaeda—the government now maintained that it would be legally irrelevant for the purposes of adjudicating the habeas petition. As such, in the government’s view, it is unnecessary for the court to consider whether HIG remains and associated force and whether membership in a formerly associated force could merit detention, because Afghani’s involvement with al-Qaeda is, on its own, sufficient to detain him under the AUMF.

It’s not clear why the government reversed course. But while the United States insisted that its position was limited to Afghani’s immediate case, there is a chance it could have further implications. Of the 40 individuals currently held at Guantanamo, it appears that the government has pointed to past HIG membership to justify the detention of at least one other detainee: Abdul al-Rizak. That being said, Rizak is alleged (again, according to the assessment leaked by WikiLeaks) to have been a trusted associated of Abu Zubaydah, so it would seem that his detention authority rests on sound footing regardless.

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In short, despite the developments in Afghani’s habeas case, his detention is almost certainly not in jeopardy. But his case offers another data point demonstrating that the government’s rationale for holding certain enemy combatants at Guantanamo will need to keep up with the facts on the ground as the War on Terror continues.