‘The US let him go free’: release of terrorist who killed unarmed Australian soldiers shows contempt for ally, family says

The family of one of the Australian soldiers killed by rogue Afghan national army sergeant Hekmatullah says Australia was treated with contempt by its closest ally, the US, after it agreed to release the self-professed terrorist from prison.

The Guardian revealed on Monday that the former Afghan national army sergeant, and Taliban plant, Hekmatullah, is again at liberty, and housed under Taliban protection, in the former diplomatic quarter of the Afghan capital Kabul.

He was returned to Afghanistan from Qatar - where he was being held under house arrest.

Several sources have independently confirmed to the Guardian Hekmatullah's repatriation to Afghanistan.

"If I am released I will continue killing foreigners," Hekmatullah told an official of the former Afghan government when his transfer to Qatar was being negotiated in 2020.

"I will continue killing Australians and I will kill you as well because you are a puppet of foreigners," he said.

Further details have now emerged around the deal between the US and the Taliban that saw Hekmatullah released from Bagram prison in Afghanistan and transferred to Qatar, including: that Australia was never shown a draft of the agreement which saw him transferred; and that the former Afghan government had considered handing Hekmatullah over to Australian custody.

The acting prime minister, Richard Marles, asked twice on Tuesday about Hekmatullah's liberty, refused to comment.

But the father of one of the Australian soldiers slain by Hekmatullah said Australia had been "sidelined" by the deal brokered between the US and the Taliban which released the terrorist from prison: a deal that excluded the democratically elected government of Afghanistan, as well as all of America's allies throughout the two decades-long war.

"Australia was sidelined by the US," said Hugh Poate, whose son, 23-year-old Robert Poate, was killed by Hekmatullah, then an Afghan National army soldier and supposed ally, in an insider-attack in 2012.

"America completely disregarded the concerns of its supposed ally under the Anzus Treaty, Australia was treated with contempt.

"And the end result of this war was that Australia lost 41 soldiers killed, 241 wounded and over 500 who have since committed suicide, for the Taliban to be replaced with the Taliban."

Poate, whose book Failures of Command details a litany of systemic errors in the lead-up to the Australians' killings, and attempts to cover those up, said Hekmatullah had vowed to kill again, and remained a danger.

"His stated further intentions of terrorism are even more of a reason for the US to now target Hekmatullah. The US let him go free, and the US now has a moral obligation to make up for that.

"Unlike other terrorists that are still being killed with drones, as recently as last week with [al-Qaida leader Ayman] al-Zawahiri in Kabul, Hekmatullah was given a fair trial in the supreme court of Afghanistan where he proudly confessed to his crimes," Poate said.

On 29 August 2012, at Wahab, a patrol base in Afghanistan's Uruzgan province, Hekmatullah, then an Afghan National Army sergeant, killed three unarmed, off-duty Australian troops. They were L/Cpl Stjepan Milosevic, 40; Spr James Martin, 21; and Poate. He then fled into the Baluchi valley.

Hekmatullah was arrested, after being found hiding in the Pakistani city of Quetta in February 2013. Charged, tried and convicted of three counts of murder, he was sentenced to death, but served only seven years in Bagram prison before being moved to house arrest in Qatar in 2020 as a condition of the US-Taliban peace deal.

After the fall of Kabul to the Taliban, he was repatriated to Afghanistan "a returning hero", according to Afghan sources. Hekmatullah has reportedly been housed in the former diplomatic quarter of Wazir Akbar Khan, in a heavily secured property in a district adjacent to the clandestine former home of al-Zawahiri, the former al-Qaida leader assassinated 10 days ago by a US drone strike as he stood on the balcony of his villa.

The Guardian has also learned the former Afghanistan government contemplated transferring Hekmatullah to Australia's custody when his liberty was being negotiated between the Taliban and the US.

"Hekmatullah remained a priority for Australia and the families of the Australian victims," Ahmad Shuja Jamal, the then director general for international relations and regional cooperation at the Afghan National Security Council, has told the Guardian.

"The Office of the National Security Council briefly considered arranging for a bilateral treaty to give Australia custody of Hekmatullah so he could serve out the rest of his sentence, but it was abandoned for technical and political difficulties."

After discussions within the Afghan government, the proposal was not formally put to the Australian government.

Western governments resisted pardoning six of 5,000 prisoners the Taliban wanted released as a pre-condition of entering peace negotiations with the US, because of the severity, or nature, of their crimes. Hekmatullah was one of these six terrorists.

They were all, ultimately, released. At least 900 of those former Taliban prisoners returned to the battlefield, destabilising republican Afghanistan, and contributing to the fall of the democratically elected government, Jamal said.

Jamal - co-author of a forthcoming book, The Decline and Fall of Republican Afghanistan, written with ANU Prof William Maley - said the then Morrison government pressed both the Trump administration and the Afghan government for Hekmatullah to remain imprisoned.

"The Afghan government assured Australia that it would do all it could to prevent the release of the convict of concern," Jamal wrote in an account of events provided to the Guardian.

Among those assurances was an assertion that Hekmatullah's crimes could not be pardoned under Islamic law, and he could therefore not be released.

"By August, nearly all the 5000 convicts except six had been released. The six included Hekmatullah and other convicts of concern to France and the United States. The Afghanistan government, through the United States, offered the Taliban to release any other six convicts instead, but the United States failed to secure the Taliban's agreement."

But the US-Taliban deal was running "behind schedule" and an agreement was brokered to move the six to house arrest in Qatar.

Government sources have confirmed Australia was not party to those negotiations, nor allowed to see draft copies of the agreement before it was confirmed.

The then Afghanistan government was placed in an invidious position, Jamal said of the 2020 negotiations, of balancing the often antithetical pressures of law, diplomacy, peace and security.

"Most of the convicts had been involved in attacks against the Afghan people and state. Many of them took up arms again upon release, providing a deadly illustration of how the US-Taliban deal undermined the viability of the Afghan republic.

"With the benefit of hindsight, better choices might have been made, but governments rarely have both the luxury of context and liberty of action."

The Guardian approached the US state department seeking comment.