In Guantánamo Habeas Corpus Case, Lawyers Insist That Trump’s Stated Intention of Not Releasing Any Prisoners Renders Their Imprisonment “Perpetual” — and Illegal

17.3.18

Judge Colleen Kollar-Kotelly and a photo of the prison at Guantanamo Bay on the day of its opening, Jan. 11, 2002.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

On January 11, the 16th anniversary of the opening of the prison at Guantánamo Bay, lawyers for eleven of the 41 prisoners still held submitted a habeas corpus petition to the District Court in Washington, D.C., arguing, as a press release by the New York-based Center for Constitutional Rights put it, that “[Donald] Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to ‘perpetual detention for detention’s sake.’”

CCR’s press release also stated that the lawyers’ filing “argues that continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired; detention now, 16 years into Guantánamo’s operation, is based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly.” The lawyers added that “Donald Trump’s proclamation that he will not release any detainees during his administration reverses the approach and policies of both President Bush and President Obama, who collectively released nearly 750 men.”

In an article marking the submission of the habeas petition, I explained that the eleven men whose lawyers submitted the petition are “Tawfiq al-Bihani (ISN 893) aka Tofiq or Toffiq al-Bihani, a Yemeni who was approved for release by Obama’s Guantánamo Review Task Force in 2010, Abdul Latif Nasser (ISN 244) aka Abdu Latif Nasser, a Moroccan approved for release in 2016 by a Periodic Review Board, a parole-type process, and nine others whose ongoing imprisonment was upheld by their PRBs: Yemenis Zohair al-Sharabi aka Suhail Sharabi (ISN 569), Said Nashir (ISN 841), Sanad al-Kazimi (ISN 1453) and Sharqawi al-Hajj (ISN 1457), Pakistanis Abdul Rabbani (ISN 1460) and Ahmed Rabbani (ISN 1461), the Algerian Saeed Bakhouche (ISN 685), aka Said Bakush, mistakenly known as Abdul Razak or Abdul Razak Ali, Abdul Malik aka Abdul Malik Bajabu (ISN 10025), a Kenyan, and one of the last men to be brought to the prison — inexplicably — in 2007, and Abu Zubaydah (ISN 10016), one of Guantánamo’s better-known prisoners, a stateless Palestinian, for whom the post-9/11 torture program was initially conceived, under the mistaken belief that he was a high-ranking member of al-Qaeda.”

A week later, the judge in the case, Judge Coleen Kollar-Kotelly (who ruled on several Guantánamo habeas corpus cases before the appeals court gutted habeas corpus of all meaning for the prisoners) responded, requiring the government to explain, by February 16, what its policy is regarding the two review processes established under President Obama, the Guantánamo Review Task Force, which, in 2009, approved the release of 156 prisoners, all but three of whom were released under Obama, and the Periodic Review Boards, which, between 2014 and 2016, approved the release of 36 prisoners, all but two of them were released before Obama left office.

Judge Kollar-Kotelly specifically asked “whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantánamo Bay, Cuba, continues to consider whether to release or transfer those prisoners, and specifically (a) whether the Government intends to transfer the Petitioners previously designated for transfer by the Task Force and/or PRB, and (b) whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantánamo Bay, Cuba, is presently considering releasing or transferring the Petitioners who were not previously designated for transfer.” She also ordered the government to “include a short summary as to the detainment status of each Petitioner.”

On time, surprisingly, the government responded, arguing that, “As the Supreme Court has acknowledged [in Hamdi v. Rumsfeld in 2004], the laws of war permit the detention of enemy combatants for the duration of a conflict,” (and specifically, in a post-9/11 context, via the Authorization for Use of Military Force, passed by the Congress the week after the 9/11 attacks). The government’s lawyers also claimed that, as a result, “Petitioners are not entitled to release simply because the conflict for which they were detained — the non-international armed conflict between the United States and its coalition partners against al Qaeda, the Taliban, and associated forces — has been lengthy.”

Unfortunately, the government felt no pressure to justify the very basis for holding prisoners, which was catastrophically chaotic. Competent tribunals under Article 5 of the Geneva Conventions, held close to the time and place of capture for prisoners who claim that they are civilians and who are not readily identifiable as a combatants, were deliberately shunned by the Bush administration, which, instead, decided that everyone who ended up in US custody was accurately detained and could be held without any rights whatsoever. This stupidly arrogant assertion of US might and infallibility ignored the fact that the majority of prisoners who ended up in US custody were not captured on a battlefield, and, in most cases, were not even captured by US forces, but by their Afghan or Pakistani allies, at a time when substantial bounty payments were being offered for alleged al-Qaeda or Taliban prisoners,

The Bush administration’s position also conveniently ignored the fact that, as a result of Guantánamo being largely filled with people about whom the US authorities knew almost nothing, most of what passes for “evidence” at Guantánamo is only what US forces themselves tortured or otherwise coerced out of the prisoners themselves, who were prevailed upon — through violence, the threat of violence, or through being bribed with all manner of “comfort items” — to make statements incriminating themselves and their fellow prisoners in all manner of terrorism-related or military-related activities that, to a large extent, never actually took place.

So on the one hand, the US authorities have, for 16 years, often had no idea who they are holding, or why, or what they are supposed to have done, and yet, on the other hand, 16 years later, Justice Department lawyers who, in some cases, have spent the whole of that time defending Guantánamo in a disgraceful and unacceptable manner — including resisting every effort by the prisoners to seek fair and balanced evaluations of the justification of their imprisonment via the habeas corpus petitions that were ruled on between 2008-2011, until politically motivated judges in the court of appeals finally succeeded in gutting habeas corpus of all meaning — are now devoting they energies to defending law of war detention as though the circumstances of capture mean nothing.

The Justice Department lawyers also made a point of defending the government’s claimed right to have prisoners approved for release, but then not release them, as though that is somehow morally or ethically acceptable, when it is clearly no such thing, and ended up attempting to justify the prisoners’ ongoing imprisonment as being “indeterminate” rather than indefinite.”

As they put it, “as long as the relevant conflict continues — and it does [] — no constitutional issue arises as to Petitioners’ continued detention. That the duration of that detention may be currently indeterminate — because the end of hostilities cannot be predicted — does not render the detention ‘perpetual’ or unconstitutionally ‘indefinite.’”

On March 9, the prisoners’ lawyers responded, and I’m posting below the whole of their preliminary statement, which sums up well their objections to the government’s position:

The government’s opposition proceeds as if the continuing detention of Petitioners for up to 16 years without charge or trial and without prospect of release by the Trump administration is utterly normal. It is not normal — as a matter of fact and law.

First, despite its platitudes and narrow caveats, the government cannot dispute the Trump administration’s stated determination to foreclose any transfers, regardless of individual facts and circumstances — including of those Petitioners cleared for transfer. The policy, clear from Trump’s campaign commitments and his thorough-going hatred and suspicion of Muslims, has only been reconfirmed since Petitioners’ filing through a February 2018 Executive Order [see here] and the President’s bellicose pronouncements during his State of the Union address. The Periodic Review Board process (part of which was revived only after the filing of Petitioners’ motion) is an exercise in futility; it is feckless and corrupted by command influence and, in any event, as the cleared Petitioners prove, meaningless in light of the President’s policy against transfers.

Second, there is no legal support for perpetual detention of this sort. The government repeats as mantra the proposition that detention may continue as long as active hostilities are ongoing. That maxim, however, cannot so readily dispose of the actual question presented or the human lives at stake. The government’s self-serving conception of “active hostilities” — depending (as it says it does) either upon the actual surrender of all Al Qaeda forces or the decimation of various Al Qaeda splinter groups across the world — will likely never cease. Thus, under the government’s own standards, it can and may well detain Petitioners in perpetuity — in violation of the Constitution and properly construed detention authority under the AUMF.

Perpetual non-criminal detention violates due process. The Due Process Clause applies to Guantánamo because identifying limits on the duration of detention would not be “improper or anomalous” under governing Supreme Court precedent — a proposition the government does not contest — and should have as much force as do the Suspension and Ex Post Facto Clauses, which the government concedes do apply to Guantánamo. Nor is such a due process challenge to duration foreclosed by a proper reading of the actual holdings of the Circuit’s cases the government relies upon. Similarly, the AUMF — on its own terms and read, as it must be, to avoid conflict with the constitutional limitations on detention — cannot permit the perpetual detention Petitioners’ face. The Supreme Court in Hamdi v. Rumsfeld, authorized only limited military detention, cautioned that any such authorization may not extend indefinitely, and expressly prohibited perpetual detention.

Petitioners have been detained without charge at Guantánamo for between 12 and 16 years — longer than the duration of any prior military conflict in US history; and, as a consequence of Trump’s policy, may not have a chance at release for up to seven years. The experiment in indefinite detention at Guantánamo has run its course. The judicial branch cannot cede the legality of these continuing and perpetual detentions to this executive branch. The Court should grant the writ.

So now it’s back to Judge Kollar-Kotelly to make a ruling — and I very much hope that she takes on board the prisoners’ arguments about the meaning of imprisonment under a president who appears to be committed to releasing no one, under any circumstances, and also that she will get to hear of my reminder that the very basis of what passes for evidence at Guantánamo, to justify detaining men in the first place, is and always has been catastrophically flawed.

It is of relevance, I think, that Judge Kollar-Kotelly’s colleague, Judge Gladys Kessler, recognized the shockingly arbitrary and corrupted nature of what passes for ”evidence” at Guantánamo almost nine years ago, in May 2009, in assessing the habeas corpus petition of a Yemeni prisoner, Alla Ali Bin Ali Ahmed, who was released in 2009, and whose case I wrote about in two articles entitled, Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses and Guantánamo: A Prison Built On Lies.

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 music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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24 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at the latest developments in the habeas corpus petition submitted by lawyers for eleven of the remaining Guantanamo prisoners on January 11, the 16th anniversary of the opening of the prison. In the original submission, the lawyers argued that “[Donald] Trump’s proclamation against releasing anyone from Guantanamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to ‘perpetual detention for detention’s sake.'” Judge Coleen Kollar-Kotelly ordered the government to respond by Feb. 16, which they did, claiming that, under the law of war, everyone at Guantanamo can be held until the end of hostilities. The lawyers submitted their response on Mar. 9, reiterating their original complaints, and now we await the judge’s ruling. In my article, I add that I hope she recognizes that claiming the right to hold prisoners indefinitely can only be acceptable if it has been ascertained that the prisoners in question were lawfully detained in the first place, whereas with the Guantanamo prisoners, of course, they were often bought for bounty payments, and no effort was made to screen them to ascertain whether they were who the US alleged that they were.

  2. Andy Worthington says...

    Jan Strain wrote:

    Trump not only wants permanent imprisonment, he wants to add to the population.

  3. Andy Worthington says...

    He’s not doing so well with that intention, Jan, but he’s doing incredibly well at sealing Guantanamo shut so that no one can leave – with Ahmed al-Darbi still held, a month after his plea deal stipulated he was to be returned to Saudi Arabia for ongoing imprisonment, and with the Justice Department lawyers who, amazingly, have been in place since Bush (people like Andrew Warden), arguing that just because high-level US government review processes under the Obama administration approved five men for release doesn’t mean that those decisions should necessarily be honored.

  4. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Very sad what some people in this world are willing to do for money, like sell other souls. I wonder if they knew what would become of them, if they would have made the same choice over again.

  5. Andy Worthington says...

    Yes, it’s interesting, isn’t it, Tashi. Those driven by what I think many of us can collectively agree is evil require the obedience of those who “just follow orders” to fulfill their horrific aims, and time and again it’s demonstrated that a large number of people are perfectly willing to sell out any kind of principles for a regular wage, job security and fitting in. It’s why people should be genuinely fearful when societies take the sort of right-wing turns that are currently happening throughout the west. The jackboots are never far away.

  6. Andy Worthington says...

    Aleksey Penskiy wrote:

    This should be handled by the UN Committee against Torture. A petition or collective appeal is needed.

  7. Andy Worthington says...

    Thanks, Aleksey. That’s a very good point, and I hope I’ve helped to start making the case, because its struck me, while researching and writing it, that although the Justice Department is entitled to argue that prisoners at Guantanamo can legitimately be held until the end of hostilities under the laws of war, it has no argument at all if the arbitrary basis of detaining prisoners at Guantanamo in the first place is properly taken into account.
    Ever since I worked with Wikileaks on the release of the classified military files relating to the prisoners, it’s been apparent to me that there should be a high-level analysis of the chronic and systemic failures of the US to evaluate, in any meaningful sense, who ended up in their custody after 9/11, and a proper recognition that, knowing nothing about the men designated as “the worst of the worst,’ the US proceeded to torture, abuse and bribe prisoners to produce something that could be passed off as evidence, but which is, in fact, desperately unreliable.

  8. Andy Worthington says...

    Caroline Colebrook wrote:

    Since they’ve never been charged or tried their detention is illegal anyway.

  9. Andy Worthington says...

    It wouldn’t be if they were held as combatants under the Geneva Conventions, Caroline, but they’re not. Instead, the US government claims to be holding them legally because Congress passed a law after 9/11, the Authorization for Use of Military Force, which gave the president the right to pursue those allegedly responsible for 9/11, and those who supported them, and in 2004 the Supreme Court, bizarrely, ruled that this meant the US could detain those it captured until the end of hostilities (establishing, as a result, a kind of parallel version of the Geneva Conventions), but this entire scenario is invented, and has nothing to do with international norms.

  10. Andy Worthington says...

    Tashi Farmilo-Marouf wrote, in response to 5, above:

    I was thinking too of the men that sold their “brothers” out to the military, they were paid to turn others in. Of course, they would turn over anyone for a buck; I wonder if they knew what we know now, that these people ended up being imprisoned and tortured, would they so easily turn them over. Maybe money is more valuable that human life to some?

  11. Andy Worthington says...

    It’s a difficult one, isn’t it, Tashi? I’d say there’s a a shocking amount of hypocrisy, because people shouldn’t be selling out their “brothers’ under any circumstances, but obviously some “brothers” are worth more than others. And when it comes to the money, the amounts were so huge that the only valid western analogy is someone offering you more than a year’s income for turning someone in as a “terrorist.” The moral high ground tends to evaporate at that point. If people were trawling streets in the UK or Canada offering people that sort of money, people would be disappearing left, right and centre, unfortunately.

  12. Andy Worthington says...

    Lorraine Barlett wrote, in response to 4, above:

    Tashi and Andy, I suspect that’s what happened to my former client (who is still there!)…

  13. Andy Worthington says...

    I thought it was more that he was in the wrong place at the wrong time, Lorraine, like the many dozens of men seized in house raids in Pakistan in the first half of 2002 who ended up at Guantanamo, the ones President Musharraf boasted about receiving millions of dollars for in his 2006 autobiography!

  14. Andy Worthington says...

    Lorraine Barlett wrote:

    Andy, yes, actually that is true – 25 or so men were captured in that raid – but it’s pretty sure somebody tipped off the authorities in the first place and copped a reward…probably Pervy himself – so it’s kinda like a compound fracture/chicken-egg scenario!

  15. Andy Worthington says...

    “Pervy,” Lorraine 😉

  16. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    There’s already an established system of selling out others in return for self-profit in the American ‘justice’ system. If you get arrested, for drug crime, for instance, you can turn in other criminals for a reduced sentence.

  17. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    That raises another question, should we award one another, monetarily, for doing ‘the right thing’? If you really felt someone is in the wrong and you wish to report them, that’s one thing. If you are getting rewarded in some way, for information, it could lead one to doing something for the rewards and not for the purpose of what’s ‘right’.
    If we’re going to cast stones at one another (having just come from church, the idea came to mind) we should make sure that we’re squeaky clean in the realm of intention.
    Maybe monetary rewards shouldn’t exist?

  18. Andy Worthington says...

    Yes, a system of financial rewards seems to be rather like bribery, Tashi.

  19. Andy Worthington says...

    Jan Strain wrote:

    ‘UN Working Group: Indefinite Detention of Gitmo Detainee Violates Human Rights Law’:
    https://www.justsecurity.org/53775/working-group-indefinite-detention-gitmo-detainee-violates-human-rights-law/

  20. Andy Worthington says...

    Thanks for that, Jan. I wrote here about the UN’s assessment that Ammar al-Baluchi – and, by extension, most of the remaining 41 prisoners – were arbitrarily detained: http://www.andyworthington.co.uk/2018/02/27/un-working-group-on-arbitrary-detention-condemns-us-treatment-of-ammar-al-baluchi-at-guantanamo-says-all-prisoners-arbitrarily-detained/

  21. Andy Worthington says...

    I haven’t kept up to date with Moath al-Alwi’s case, however, referred to in the Just Security article, and that’s worth looking at in more detail, Jan, with a ruling expected sometime soon in the D.C. Circuit Court. There’s a round-up here on Lawfare (the national security website I don’t generally recommend, because it was set up on the basis of justifying so much of the way in which detention policies changed for the worse post-9/11): https://www.lawfareblog.com/al-alwi-v-trump-government-responds-initial-hearing-en-banc-requested-and-denied-and-amici-chime

  22. Andy Worthington says...

    You prompted me to update my definitive Guantanamo habeas list, Jan! http://www.andyworthington.co.uk/guantanamo-habeas-results-the-definitive-list/

  23. Andy Worthington says...

    Caroline Colebrook wrote, in response to 9, above:

    The other aspect to the illegality is that Guantanamo is part of sovereign Cuba, illegally occupied by the US under the terms of a treaty that has expired. The Cuban government is very angry that part of their territory is being used in this obscene way.

  24. Andy Worthington says...

    The Cuban government is certainly angry about losing its beautiful eastern bay and the surrounding land to the US military, Caroline, and ought to have a case against the US for breaking the terms of its lease, which is only supposed to allow the US to operate a coaling station. However, no mechanism exists to compel the US to do anything it doesn’t want to.
    There isn’t a treaty that’s expired; instead there’s the lease I mentioned above, a horribly one-sided affair (as deliberately instigated by the US) that cannot be ended unless both parties agree to it. A so often, the US is operating on an un-level playing field of its own devising.

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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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