War Is Over, Set Us Free, Say Guantánamo Prisoners; Judge Says No

7.8.15

Guantanamo prisoner Mukhtar al-Warafi, in a photo from the classified military files released by WikiLeaks in 2011.I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Back in March, as I explained in an article at the time, lawyers for five Afghan prisoners still held at Guantánamo wrote a letter to President Obama and other senior officials in the Obama administration, in which they sought their release, on the basis that, as the lawyers put it, “Their continued detention is illegal because the hostilities in Afghanistan, the only possible justification for detention, have ended. Therefore, these individuals should be released and repatriated or resettled immediately.” They referred to President Obama’s State of the Union Address, on January 20 this year, at which the president said, “Tonight, for the first time since 9/11, our combat mission in Afghanistan is over.”

In my article, I also mentioned a federal court filing submitted on behalf of a Yemeni prisoner, Mukhtar al-Warafi, at the end of February calling for his release for similar reasons. I stated, “One of al-Warafi’s lawyers is Brian Foster, who, with colleagues at the law firm Covington & Burling, represents prisoners accused of being involved with the Taliban as well as others accused of having some involvement with al-Qaeda. Foster said they ‘chose al-Warafi’s case as a first test because he was only ever named as a member of the Taliban, offering a clearer argument for why he should be set free now,’ as opposed to men accused of having al-Qaeda connections.”

As I also discussed recently, al-Warafi was approved for release by President Obama’s high-level, inter-agency Guantánamo Review Task Force in January 2010, but had his habeas corpus petition subsequently challenged by the Justice Department, in an example of a lack of joined-up thinking within the government. Al-Warafi’s habeas petition was subsequently turned down by a judge in March 2010.

Since my article in April, another prisoner, Fayiz al-Kandari, the last Kuwaiti held at Guantánamo, also sought his release because of the end of hostilities. As the Associated Press described it in an article in June, “In a court filing, lawyers for al-Kandari wrote that ‘there is no longer a battlefield in Afghanistan in which the United States is sustaining active combat operations. Accordingly, there is no longer a basis under the international laws of war to detain’ their client.”

The detention of the Guantánamo prisoners is based on the Authorization for Use of Military Force, passed by Congress within days of the 9/11 attacks. The AUMF authorized the president to pursue anyone he regarded as being connected to the 9/11 attacks, and in June 2004, in Hamdi vs. Rumsfeld, the Supreme Court ruled that detentions based on the AUMF were legal, but only as long as “active hostilities” continued.

Looking at al-Warafi’s case as well as al-Kandari’s, the AP explained how defense lawyers have pointed out that, even prior to his State of the Union Address, President Obama “unequivocally signaled an end to the military conflict when, on Dec. 28, he declared that ‘our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.'”

However, as the AP put it, “the Justice Department says ‘active hostilities’ clearly persist against the Taliban and al-Qaeda, and that Obama never suggested that all military and counterterrorism operations would be coming to an end.”

In April, in a reply in al-Warafi’s case, government lawyers stated, “Simply put, the president’s statements signify a transition in United States military operations, not a cessation.”

Eugene Fidell, who teaches military justice at Yale Law School, said, “Presidents say things,” and, in the AP’s words, “recalled President George W. Bush’s celebratory Iraq War speech in 2003, delivered from the deck of an aircraft carrier under a ‘Mission Accomplished’ banner.”

“Well, the mission wasn’t accomplished,” Fidell said. “Perhaps some presidential statements of fact have an aspirational flavor.”

Steven Vladeck, a national security law professor at American University, acknowledged, however, that “[t]he lawyers for the detainees are asking the right questions. And what’s really interesting is that the government can’t quite seem to figure out its answer.” Vladeck added that “the real question is not whether the government is going to win this round, but how.” He predicted that “[t]here’s going to be some skepticism from the judges about the inconsistencies in the government’s position and its limitlessness.”

In the end, the first decision, in al-Warafi’s case, delivered on July 30, came down in the government’s favor. As the New York Times described it, Judge Royce C. Lamberth of the District Court in Washington D.C. ruled that the US military “may continue to hold a Guantánamo Bay detainee accused of being a Taliban fighter even though President Obama has repeatedly said that the United States’ war in Afghanistan has ended.”

The 14-page ruling, the Times added, “was a rare judicial attempt to resolve legal questions that may have implications for years to come — including how a war against a loose-knit organization of terrorists and their splintering, morphing allies can come to a definitive end, and who decides whether it has done so.”

Judge Lamberth, as the Times put it, “ruled that regardless of what Mr. Obama has said about the status of the war in Afghanistan, there continues to be fighting between the United States and the Taliban. As a result … the government retains the legal authority to detain enemy fighters, including Taliban members, to prevent them from returning to that fight.”

Judge Lamberth stated, “A court cannot look to political speeches alone to determine factual and legal realities merely because doing so would be easier than looking at all of the relevant evidence. The government may not always say what it means or means what it says.”

For Mukhtar al-Warafi, this must be a bitter blow, as it was Judge Lamberth who refused to grant his habeas petition back in March 2010.

As the Times explained, al-Warafi’s lawyers “argued that Mr. Obama had the power to decide when the war was over, and his public comments showed that the government’s legal authority to detain suspected Taliban prisoners had expired. The Justice Department agreed that Mr. Obama had the power to decide when it was over, but submitted a letter to the court in which Mr. Obama had said that the armed conflict in Afghanistan, including against the Taliban, continued.” In response, al-Warafi’s lawyers “said the Obama administration was trying to go back on the president’s previous pronouncements.”

Judge Lamberth, however, ruled that “both sides were wrong in saying that it was up to the president alone to say whether a war was over for legal purposes.” He said that the courts “had to independently determine whether fighting was still going on, regardless of political speech.”

The Times noted that Judge Lamberth’s reasoning “implied that someday, a court could rule that the war was over and require that detainees be freed, even if the president at that time disagreed.” However, David Remes, one of his lawyers, “expressed disappointment, in part because the existence of ‘fighting’ as triggering wartime detention powers is a lower standard than a full-blown ‘armed conflict.'”

Remes said that the ruling “seemed to endorse the idea of a limitless forever war under which the government can continue to hold men for as long as there is ‘fighting.'”

The Guardian added that Brian Foster “said the judge’s opinion amounted to a ‘rubber stamp for endless detention.'” He added that “he would review the opinion and decide whether to appeal.”

Please also see below a cross-post of an op-ed for Al-Jazeera by another Guantánamo prisoner, Moath al-Alwi (aka Muaz al-Alawi) asking, “If the war is over, why am I still here?”

If the war is over, why am I still here?
By Moath al-Alwi, Al-Jazeera, June 23, 2015

I hear the war in Afghanistan is over.

This war was supposedly the reason I remained trapped, rotting in this endless horror at Guantánamo Bay. I write this letter today to ask, if this war has ended, why am I still here? Why has nothing changed?

Amid falling bombs and mass hysteria, I fled Afghanistan for safety when the US launched its military operations in 2001. I was abducted despite never fighting against the United States, was sold into US military custody, and then imprisoned, tortured, and abused at Guantánamo since 2002 without ever being charged with a single crime.

I protest this injustice by hunger striking, refusing food and sometimes water. One of Guantánamo’s long-term hunger strikers, I am a frail man now, weighing only 96 pounds (44kg) at 5’5″ (1.68m).

Recently, my latest strike surpassed its second year. My health is deteriorating rapidly, but my intention to continue my strike is steadfast. I do not want to kill myself. My religion prohibits suicide. But despite daily bouts of violent vomiting and sharp pain, I will not eat or drink to peacefully protest against the injustice of this place. My protest is the one form of control I have of my own life and I vow to continue it until I am free.

I remain on lockdown alone in my cell 22 hours a day. Despite my condition, prison authorities unleash an entire riot squad of six giant guards to forcibly extract me from my cell, restrain me onto a chair and brutally force-feed me daily. They push a thick tube down my nose until I bleed, after which I vomit.

This gruesome procedure may not be written about so much any more, but it remains my everyday reality. It is painful. And it is bewildering. How can I possibly resist anyone, let alone these men? Hunger striking is a form of peaceful and civil disobedience. It is not a crime. So why am I being punished? Why not humanely tube-feed me instead?

My time here has been ridden with unanswered questions. Two years ago, as I attempted to pray, a sudden raid was ordered and a guard deliberately shot me without warning or provocation. Once again, I was not resisting. So why did he shoot? My clothes, torn, were soaked in my own blood. I want the government to ask the guard who shot me to account for his actions.

I began to wonder if shooting without any provocation is legal in the US. But now I realise that US police officers get away with ruthlessly killing black people all the time.

I wonder now if the US follows any rule of law at all: the Geneva Conventions or even its own Constitution. Where is the freedom and justice for all that it so proudly boasts to the world?

For us at Guantánamo, this place is not fit for any living, breathing, human being. The US seems to want to smother us, to kill us slowly as we are left in a vacuum of uncertainty wondering if we will ever be free.

I have lived the past 13 years in this despair, at the cost of my dignity, paying the price for the US government’s political theatre. Meanwhile, little has changed for the 122 men [note: now 116] remaining at Guantánamo.

The world may turn a blind eye and find this number small. But for each of us here, the cost of our indefinite and unfair imprisonment is beyond immeasurable. Our families have lost fathers, brothers, husbands, and sons to this hell on earth. Many of us have unnecessarily lost over a decade of our already short time in this world, yearning to be free again.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ was released in July 2015). He is the co-founder of the Close Guantánamo campaign, the co-director of We Stand With Shaker, calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

7 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here, cross-posted from Close Guantanamo, is my latest ‪Guantanamo‬ article, about the recent decision by US Judge Royce Lamberth not to free a prisoner, Mukhtar al-Warafi, who took President Obama at his word that the war in Afghanistan was over and asked the judge to order his release. So will war in Afghanistan – and the detention of the prisoners in Guantanamo – continue until there isn’t a single US soldier anywhere in Afghanistan? What a disgrace!

  2. Andy Worthington says...

    Willy Bach wrote:

    Andy, these US judges seem to make law up as they go along. Yes, there is still fighting in Afghanistan, but the US forces are mostly gone. The fighting is mostly caused by the US illegal aggressive war anyway. So, logic says the Guantanamo abductees have to stay there till they die.

    Law and evidence have nothing to do with is. The US can act on whim and political cowardice. It is all OK with the judge – whatever!

  3. Andy Worthington says...

    Yes, it’s disappointing, Willy. On this basis, as you infer, there’ll always be some US soldiers left in the country to justify continuing to hold Guantanamo prisoners, after 13 and a half years, which is an exceedingly long time to be held as a PoW, let alone as an invented category of belligerent with, essentially, no rights.

  4. Anna says...

    Hi Andy,

    hope your short family holiday was great in spite of the rain. In the meantime the usual ups & downs. The Israeli government has made force feeding into a law, despite mass protests, but the APA has voted against psychologists’ involvement in torture 🙂 http://physiciansforhumanrights.org/blog/american-psychological-associations-first-step-toward-accountability.html.

    As for Afghanistan, the US – and their army – are there to stay, no matter what new fancy name they give their presence, it’s about having a permanent military presence there – mostly special forces & mercenaries – and easy access to whatever economic spoils China might leave them.
    And as long as any of them stays there (and it’s not like they just sit and play poker in their bases, they go out and kill like before), various insurgents will fight them – and increasingly the Afghan forces too. One of the multiple deadly attacks in Kabul last Friday was aimed at ‘Camp Integrity’ (sorry, but that really is its name), a Blackwater (of late Academi I think) base, which employs among others poor Filipinos and Sri Lankans for all household chores against peanut payment, while Academi of course gets paid a fortune for this by the US government.
    This is how they ate on July 4th, in a country where malnourishment is rampant:
    https://www.facebook.com/pages/Camp-Integrity/131591146930793.

    And as long as there is even one single insurgent left (wishful thinking as their number has been steadily increasing since at least 2003), that will be enough for the US to claim that that war is not over and the GWOT prisoners – most of whom had not been grabbed off that battlefield anyway, so there never even was any connection between the two to start with – and all of the Afghan nation will continue to pay the price.
    As this moving letter so vividly demonstrates.

  5. Andy Worthington says...

    Lovely to hear from you, Anna, and thanks for the comments.
    It’s unfortunate, but not surprising, that the Israeli government is involved in new detention-based horrors, as they provided direct inspiration for some of the Bush administration’s disgraceful “war on terror” policies back in 2001.
    It’s great news about the APA, of course, and I hope it will be remembered as an important decision in the long road to accountability for the Bush administration’s post-9/11 torture program.
    As for Afghanistan, I think, sadly, that you may be right about the endless US presence, although politically I’m not sure we’ve seen the end of challenges by the Guantanamo prisoners. Every year it becomes more difficult for the authorities to justify such long detention under the laws of war they claim to be following. But we shall have to wait and see. Nothing positive, it is clear, happens at Guantanamo without great effort.

  6. Anna says...

  7. Andy Worthington says...

    Thanks to my friend Jen for that report, Anna – but how horrible the reality is: Tariq Ba Odah starving himself to death like the Irish hunger strikers in the 1970s to highlight the complete and inarguable injustice of his situation – and that of the other Guantanamo prisoners. The Pentagon should be ashamed of their position; the Obama administration no less for failing to realize or care abut what Tariq’s death would mean for the legitimacy of any claim that the US – under Obama – is anything less than barbaric.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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