Amos Barshad | The Marshall Project & Longreads | February 2018 | 16 minutes (4,100 words)
This article was co-published with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
The message came in on a spring day via the undisclosed U.S. government facility that approves all correspondence out of the military prison in Guantánamo Bay. It was a request for representation from Haroon Gul, a detainee, to Shelby Sullivan-Bennis, an attorney. Gul had never had a lawyer. He was one of the last men in Guantánamo without one.
Now, in 2016, his request was urgent. After nearly a decade of nothing, he was being given the chance to explain himself. It would happen through the Periodic Review Board, an administrative body that considers whether Guantánamo prisoners who have not been charged should be transferred home or to another country. A board representative wrote Sullivan-Bennis an email explaining that Gul, also identified as detainee number ISN 3148, “has requested in writing that you assist him with … proceedings before the PRB, at no cost to the Government.” When the email arrived, Gul’s first hearing was weeks away.
Guantánamo lawyers are famously overworked. At the time, Sullivan-Bennis was juggling five other clients. She and her coworkers at the human rights organization Reprieve asked themselves: How can we possibly handle another one? “And then everyone was like, ‘Let’s just try,’” Sullivan-Bennis recalled. “Because otherwise he’ll be alone.’”
She typed Gul a brief note saying that she’d take his case and that she’d come see him soon. She asked if he wanted anything from Guantánamo’s all-purpose department store, the Navy Exchange.
“Dear Honorable Miss Shelby Sullivan Bennis,” he wrote back in sloping, cursive handwriting, “I have no words to express my feeling of gratitude, appreciation and Thanks for your timly legal and moral help in my PRB hearing. I was in a helpless and hopeless state of my mind in my legal affairs you gave me emotional psycholgcal help.”
A few weeks later, they met for the first time in a windowless cement cellblock on prison grounds. Gul sat across a plastic-top table from Sullivan-Bennis in a loose-fitting, tan-colored T-shirt, with his ankle shackled to a metal ring secured to the floor. He’d been detained in Guantánamo since 2007, shortly after Afghan National Directorate of Security forces burst with guns into the rural guesthouse where he was staying outside Jalalabad and threw a bag over his head.
For the first time, he told his story to a lawyer. He was in his early 30s, like her. He had a wife, Halimah, and a 10-year-old daughter, Maryam, living in a refugee camp in Pakistan. Gul himself grew up in a Pakistani camp after violence forced his family to flee his home in Afghanistan. Despite harsh camp conditions, he’d earned an economics degree at Hayatabad Science University. He spoke four languages, including Pashto and Dari. While at Guantánamo he’d learned a fifth, English.
And like nearly every other detainee held at Guantánamo since 9/11, Gul had never been charged with a crime. The U.S. government was justifying his detainment under the law of war. In a secret government dossier on Gul released by Wikileaks, Gul (also known as Haroon al-Afghani) is described as “high risk” and of “high intelligence value.” The dossier alleges that he was an explosives expert and a high-ranking military strategist who had executed attacks on the Northern Alliance on behalf of Hezb-e Islami Gulbuddin, or HIG, a party affiliated with al Qaeda in the 2000s. U.S. intel also indicates that, in 2001, Gul attempted to help Osama bin Laden escape from Tora Bora.
Gul was too polite to put it this way, but he was effectively saying that it was all, all of it, bullshit. His affiliation with HIG was the same as that of millions of other Afghans: The group ran the refugee camps he needed to survive. He said he supported his family by selling small goods, like used books and jars of honey. He said the reason he was in that guesthouse that night was because he was on the road, selling, trying to scrape together some money. He said the Afghans had grabbed the wrong person.
The government’s allegations were built on secret interrogations and unidentified sources named things like IZ-10026. Sullivan-Bennis came to believe that Gul was innocent. It had happened before: An alleged al Qaeda agent named Mustafa al-Aziz al-Shamiri was detained for 13 years before his release; during his PRB hearing, the government admitted it may have had the wrong man.
The PRB process, though, is not about guilt or innocence. It’s akin to a parole hearing: Are you ready to repent? One of Sullivan-Bennis’s supervising attorneys had called it “having to roll over and show them your tummy.” Gul believed he had committed no crimes for which to repent. But he wouldn’t be the first to be granted freedom through the review board by expressing remorse for things he’d never done.
Thomas Wilner is one of the lawyers who won the two landmark Supreme Court cases that established habeas corpus rights for Guantánamo detainees. The PRB process “is not based on evidence,” he told me. “You have to be contrite. What do you tell a client who wants to go, ‘Fuck you! I’m innocent!’”
That first meeting between Gul and Sullivan-Bennis would come just four days before the PRB convened. Then came the hearing.
“So he sits in this white room with oddly comfortable chairs that the detainees have never been allowed to sit in before,” Sullivan-Bennis recalled. “They prop him up at the head of the table, and he sinks into this enormous beige puffy chair and he faces this enormous screen.” On the giant screen were the floating heads of a six-member board representing the Department of Justice and the other federal agencies that weigh in on the clearance process for Guantánamo. “And then, essentially, it’s an interrogation.”
Later, Sullivan-Bennis would identify all manner of reasons why the hearing didn’t break their way. But in her view it all came down to prep—they just didn’t have enough time.
“In making this determination,” the official ruling read, “the Board considered the detainee’s … failure to acknowledge or accept responsibility for past activities. The Board welcomes seeing the detainee’s file in six months with greater candor.”
So Gul was not recommended for transfer. But it was OK. Much higher profile Guantánamo detainees had been released through the PRB. That included Mohamedou Ould Slahi, who’d been implicated both in recruiting three of the 9/11 hijackers and in planning the foiled “Millennium Plot” to detonate explosives at LAX. In all, 36 detainees have been cleared and released through the review board. At least seven of those had not been granted a transfer after their first hearing before eventually winning their freedom.
Toward the end of President Obama’s second term, he had greatly accelerated the process of clearing out Guantánamo. By the end of the Bush administration the detainee population was 245; by the end of the Obama administration, it was 41. As president, Hillary Clinton would likely have been as eager to cut these last men loose: Before leaving her post as secretary of state, in January 2013, Clinton had sent Obama a forceful and detailed memo urging him to shutter the prison for good.
The detainees refer to securing a transfer as “getting your paper.” In the late summer of 2016, there was real reason to hope that Gul would get his. He’d be prepared, properly prepared, for the next PRB hearing. Gul finally, finally, had a lawyer.
A Guantanamo guard keeps watch over detainees attending a class in “Life Skills” at Camp 6 high-security detention facility at Guantanamo Bay U.S. Naval Base, Cuba. (AP Photo/Brennan Linsley)
* * *
There are two prison camps left at Guantánamo. Camp 7 houses 15 high-profile detainees, including Khalid Sheikh Mohammed, the infamous KSM, the alleged “architect of 9/11.” The detainees engaged in military tribunals through the OMC, the Office of Military Commissions, are housed in Camp 7. Slowly, very slowly, legal cases against them are moving forward. And perhaps it’s counterintuitive because of the extremity of their alleged crimes, but they actually have large and extremely competent legal teams behind them, made up of a combination of civilian and JAG attorneys.
Gul is in Camp 6, with the 20 or so other non–high-profile detainees. The allegations against the detainees here are murky or relatively minor or, often enough, both. If their cases had been brought through the federal court system in the United States, they might well have been tried and—convicted or not—released by now. But because of their relatively lesser status, they’re left alone. The OMC system is deeply flawed, defense attorneys and legal experts say. But KSM is still moving toward some form of justice. Someone like Gul—a nobody—had no reason to believe he’d ever be afforded a reckoning.
But he tried. There are two detainees at Guantánamo who have chosen not to engage with the American legal system, according to Reprieve, and had never had representation. Gul was the last detainee to seek a lawyer and not have one.
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The exact reasons as to why Gul went so long without representation are messy and rife with the surreality that has come to define Guantánamo. According to Sullivan-Bennis, for a while, prison guards didn’t give Gul access to the official blue envelopes required for all legal correspondence. Their reasoning was that Gul didn’t have an active legal case, so why would he need the blue envelopes? In effect, Gul was being told, once you have a lawyer, you can seek out a lawyer.
Gul eventually managed to get word out to the network of attorneys who take on this kind of work, a tight-knit group informally known as the “GTMO bar.” Some never responded. Some wrote back to say they just couldn’t take on more clients.
For his first three years in Guantánamo, Gul only interacted with prison guards and detainees. In 2010, he was allowed to get a letter out to his family through the International Committee of the Red Cross. He wrote, “I am in Gitmo. Pray for me … I am OK.” Since, he’s been allowed one glitchy, heavily censored phone call every four to six weeks.
Working Gul’s case required long hours in Guantánamo, in those claustrophobic cement rooms. Pretty quickly, Sullivan-Bennis became someone he could talk to. About anything.
Haroon Gul. (Courtesy of Shelby Sullivan-Bennis)
He felt his tragedy was grand, for sure. Gul said he suffered physical trauma. As Reprieve would write, after his arrest, he was “blindfolded, shackled, and hung by his arms while they were still cuffed behind his back, stripped and tortured.” Once at Guantánamo, Reprieve said, his interrogators “denied him access to bathroom facilities,” “lowered the thermostat to freezing,” and shackled him for up to 12 hours at a time “without water or food in a position that allowed him neither to fully stand nor sit, preventing any sleep.”
But like anyone, in or out of indefinite detention, he was obsessed with the minor indignities of his life, too. Slights from guards. Uncomfortable living conditions. “He’d never had anyone to talk to about this injustice or that one,” said Sullivan-Bennis. “His detention is the overarching one—but there are hundreds beneath that.”
And really, he just loved to chat. He’d talk about Afghan politics, which Sullivan-Bennis couldn’t engage him much on, and American politics, which she happily could. During the 2016 primaries, Gul watched a lot of the lefty news channel Democracy Now! He told Sullivan-Bennis, “Bernie is concerned with the people!” One day Sullivan-Bennis got a memo from the team that reviews detainee correspondence. “It said, ‘Your client has written a letter to someone besides yourself. And then at the bottom of the memo it said, ‘That person was Bernie Sanders.’”
Most of Sullivan-Bennis’s clients were older than her, some by decades. They were proper, careful, reserved. Gul was a bit of a ballbuster. He’d laugh that they were both too young to know anything. Once, he picked up that Sullivan-Bennis was in a bad mood and riffed: “It’s OK! It’s Guantánamo! It makes everyone feel like they’re at war!”
As they got to know each other, Sullivan-Bennis pushed forward on another front—Gul’s habeas corpus case in the federal court system in D.C. Habeas corpus establishes that a detainee cannot be held indefinitely without grounds.
For Reprieve, this represented the crux of the injustice of his detention. Say Gul had been a high-level HIG operative. Wasn’t it long past time for the government to prove as much in court? Also, in the years since, the Afghan government had actually reached a peace deal with HIG. They were now a legally recognized political party running candidates for office. And besides: Obama had declared the war in Afghanistan over in 2014. So why were we still holding war prisoners?
But Sullivan-Bennis said she hit a wall putting Gul’s case together: The U.S. government wasn’t cooperating. Of the thousands of documents that purportedly made up the case against Gul, only 24 pages had at first been declassified and turned over. As Sullivan-Bennis explained, “It sounds insane, but it’s not at all automatic that, if you’re imprisoned in Guantánamo, you know why.”
Shelby Sullivan-Bennis (Greg Kahn for The Marshall Project)
* * *
In November 2016, Donald Trump was elected president. A month or so after, the ramifications of the shock victory not yet settled, I spoke with Sullivan-Bennis. On the campaign trail Trump had promised to keep Guantánamo open and to load it up with “bad dudes”; he’d also promoted torture of wartime detainees like Gul. “Frankly, we’re hopeful,” she said, “and we’re terrified.”
Gul fell into a pit. “He’s said to me so many times, ‘Shelby, I can’t wait another year. I should go home. I should be at home,’” Sullivan-Bennis said. Gul would express concern for his daughter’s education. When she was able to study, she was an excellent student, regularly one of the best in her class. She loved it so much, Gul explained, that she’d even inspired her mother to go back to school. But life in the refugee camps could be unstable. And in those times, Sullivan-Bennis said, Gul would “repeat over and over, ‘She hasn’t been able to get to school. She hasn’t been able to get to school.’”
In the early months of 2017, Gul and Sullivan-Bennis prepped carefully for Gul’s second PRB hearing. They worked on explaining, in as detailed and direct a manner as possible, Gul’s life before Guantánamo. Gul was prone to circular answers. Sullivan-Bennis drilled him as if she was preparing a client for cross examination. “No,” she would tell him, good-naturedly pushing back as he rambled, “that’s not exactly it.”
They also worked on explaining what his life after would be like. Gul had charted out a business plan for a honeybee farm that he would run in coordination with a local university in Pakistan. Agricultural students would be employed on the farm in a work-study capacity. There’d be a bakery on site, too.
In regard to the extremist ideology of al Qaeda that had purportedly got him locked up in the first place, Gul knew what he would say. It does not comport with his belief system. Al Qaeda oppresses women. He wants schooling for his wife and daughter.
One question was still present: contrition. Gul and Sullivan-Bennis knew the board was looking for repentance. Gul had never wavered from his claim of innocence. And so he had never before raised the possibility of asking for forgiveness. But this was now his second go-around. Post-Trump, perhaps he’d be more desperate than ever. Willing to compromise his truth.
Sullivan-Bennis waited for him to make his decision. “I would never counsel him to lie,” she said. “But I think the detainees should be given the tools to make those decisions for themselves.”
In March, Gul had his hearing. Once again he was trotted into the white room and plopped into the oddly comfortable beige chair. Once again he faced the floating heads on the screen. Once again he made his case for release.
“He answered everything quickly and directly,” Sullivan-Bennis reported back at the time. “We presented the business plans. I think he was great. I think he did really well.”
Gul knew men that had gotten out by throwing themselves at the mercy of the review board. But even then, years into his detention—and with a shred of hope finally in grasp—he didn’t budge. He didn’t apologize. Sullivan-Bennis said, “I don’t think he would ever consider it.”
Letters and drawings from Haroon Gul who is a prisoner at the US base in Guantanamo, Cuba. (Courtesy of Shelby Sullivan-Bennis)
* * *
In April 2017, while on prison camp grounds in Guantánamo, Sullivan-Bennis ran into a government interpreter she knew. She heard, “‘Oh, I think they’re giving Haroon his Final Determination today.’ And I was like, ‘What?!’”
The Final Determination was the government’s response to Gul’s second review board hearing. Per protocol, Gul and Sullivan-Bennis should have been notified it was coming down. No such notification occurred, Sullivan-Bennis said. “I just happened to be physically present at the camp at that particular moment in the morning,” she said, “and I just, like, barged into the meeting.”
It was the same kind of windowless cement room where Sullivan-Bennis and Gul always had their meetings. Gul was on one side of the plastic-top table. Sullivan-Bennis, an interpreter, and a military representative sat on the other.
The military rep read a brief statement: “The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.”
Gul listened and stayed silent. The representative asked if Gul had any questions. Gul said no. “And he just looked at me,” Sullivan-Bennis recalled. “And I said, ‘I’m sorry.’ And he said, ‘It’s OK. It doesn’t matter.’ And I said, ‘Yes it does.’”
That afternoon, Sullivan-Bennis and Gul met one-on-one. “He’s not a defeatist person,” she said. “But for four hours he told me he was giving up on his life.” Gul wasn’t done seeking legal recourse. He was was done with it all. “He was saying he wanted to give up on his family,” Sullivan-Bennis explained. “He was saying he was giving them false hope. He wanted to let them go and continue their lives.”
Then he apologized. “He said, ‘I’m sorry you have to suffer me.’” Mustering some deep reserves of enthusiasm, Sullivan-Bennis tried to push back. She told him, “This doesn’t mean the end of everything.”
Immediately after Trump’s election, no one actually knew what he would do with Guantánamo or its “forever prisoners.” Months in, it seemed his administration was taking the path of least resistance.
In an email, Pentagon spokesperson Air Force Major Ben Sakrisson confirmed the facts: “Since January 2017, no PRBs resulted in a transfer decision.” Furthermore, five men who had been cleared for transfer by the Obama administration were not being released. The Pentagon did not reply to queries about Gul’s case.
A few months ago, when it became clearer what was happening at Guantánamo, I spoke to Wilner, the Supreme Court lawyer who had won habeas rights for detainees. “Obama was not being honest about his commitment to ending this,” he told me, fuming. “I think, in the back of his mind, he liked the idea that he could keep people except those he wanted to release.”
Frustrated, horrified, he unleashed a bellow somewhere in the direction of the former president: “You left it in Trump’s hands, and now the poor bastards are stuck there! You’re leaving Donald Trump a lawless prison!”
* * *
An outdoor recreation area stands within the “Gitmo” maximum security detention center on October 22, 2016 at the U.S. Naval Station at Guantanamo Bay, Cuba. (Photo by John Moore/Getty Images)
In the fall of 2017, I visited Guantánamo Bay. I sat in on hearings in the Expeditionary Legal Complex. It’s a war court, prefab, plopped in the middle of a disused tarmac. That week, the ELC was holding pretrial hearings in the 9/11 trial, the Office of Military Commission case against Khalid Sheikh Mohammed and the four other detainees charged with conspiring to execute the attacks.
In an infamous photo of KSM from the night of his capture, he looks wild and disheveled and dazed, but also imposing somehow—a menace, a threat. In person, escorted into court by two soldiers in fatigues and blue plastic gloves, in a camo jacket over a white robe, he looked shrunken.
I sat in the back of the courtroom in a viewing gallery separated, with respect to the preservation of classified information, by three panes of soundproof glass and a 40-second audio delay. Little placards posted throughout the room listed rules. Nᴏ ᴅʀᴀᴡɪɴɢ, ᴅᴏᴏᴅʟɪɴɢ, ꜱᴋᴇᴛᴄʜɪɴɢ. Nᴏ ʙɪɴᴏᴄᴜʟᴀʀꜱ.
The defense pushed for discovery. One defense lawyer wanted all information about CIA torture sites, down to the actual building materials. She wanted to know what kind of wall it was that her client’s head had been slammed into over and over again. She wanted to know weather conditions and smell—“smell in the context of torture can be important.”
Another defense lawyer charted out a long list of witnesses he’d like to call over the question of war hostilities. They were major names from a former era. Paul Wolfowitz. Condoleezza Rice. Colin Powell. Donald Rumsfeld. At some point during his presentation, lead prosecutor Brigadier General Mark Martins stood at his desk, hunched over his microphone, and announced, “I’m invoking national security privilege.”
Something had been deemed to be potentially classified. The court gallery was cleared. While it was sorted, we went outside and baked in the Cuban sun near vending machines stocked with Pepsi and Andy Capps’ Hot Fries. We watched a woman feed chocolate to a long, lone iguana. A soldier standing guard behind us clucked, worried about the gastrointestinal impact. That iguana, he told us, was going to have a “bad time.”
Everyone on both sides was muddling forward together, hoping to instill the process with legitimacy. But there was no precedent here. It was hard to ignore the overarching fact: all these years later, and the case was still in pretrial hearings. Everything was trivial. Everything was huge.
And yet, there was something to be said for the sheer existence of the proceedings. Some semblance of jurisprudence was lurching along.
As for Gul’s case, Sullivan-Bennis is still engaged in the habeas process. A year and a half after Reprieve took him on as a client, she said she is still struggling with basic discovery. For one, she said the government had conducted extensive searches but could not find any transcripts of Gul’s many interrogations. The Justice Department declined to comment, citing active litigation.
In January, hoping to bring renewed attention to their indefinite detention, 11 of Gul’s fellow “forever prisoners” filed new habeas petitions in the U.S. District Court in D.C. The motions, which Sullivan-Bennis called “kind of like a class-action lawsuit for GTMO detainees,” were filed simultaneously at 8:30 a.m. on January 11, the 16th anniversary of the opening of the prison. Reprieve was involved in the action, but out of concern that a new petition might hurt his case, Gul was not.
Days later, Trump announced during his State of the Union address that he had signed an executive order to “keep open the detention facilities at Guantánamo Bay,” officially reversing an Obama-era order to shut down the prison.
As a government cable leaked a few days earlier made clear, “The E.O. does not signal a significant policy shift with respect to detentions. Rather, it affirms Guantánamo Bay will continue to … serve as one of several options the United States maintains for the detention of terrorists.” Both sides were making noise. The status quo, however, was not being threatened.
“I’m relieved, to be honest,” Sullivan-Bennis said of Trump’s order, adding that she and other lawyers in the GTMO bar had expected worse. They’d imagined that Trump might explicitly ban the possibility of detainees being transferred out. “Officially, at least, they still have an avenue for release. Whether or not we’re ever going to see this happen is another question.”
When I first began communicating with Sullivan-Bennis, a month before the 2016 election, I did so believing I was tracking the process of getting a man released from Guantánamo. But for now, Trump, it seems, has shut the doors.
I wasn’t able to see Gul while I was in Guantánamo. Press are not granted communication with detainees. He was a few miles away—exact location, undisclosed—in Camp 6. He’d been there for years. Surely, now, he’d be there for years to come.
And yet, Gul still talks about the future. He’s written to Sullivan-Bennis, “I am working on some projects to make my life after Gitmo better. I am still thinking about my wife and daughter.” What else can he do?
Sullivan-Bennis had instructed Gul to stop engaging with the Periodic Review Board. She could no longer force optimism. “I would be hugely surprised if anyone left Guantánamo in the next four years,” she told me. “But I don’t like to say it out loud.”
* * *
Amos Barshad has written for The FADER, Grantland, The New Yorker, The New York Times Magazine and The Arkansas Times. He lives in New York City.
Published in partnership with The Marshall Project.
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