Tomorrow, Lawyers Will Argue in Court That Donald Trump’s Guantánamo Policy Is “Arbitrary, Unlawful, and Motivated by Executive Hubris and Anti-Muslim Animus”

10.7.18

Senior Judge Thomas F. Hogan of the District Court in Washington, D.C. and a photo of prisoners at Guantanamo on the day of the prison's opening, January 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.

 

It’s a big day for Guantánamo tomorrow, as lawyers for eleven prisoners still held at the prison will be arguing before Senior Judge Thomas F. Hogan in the District Court in Washington, D.C. that, as the New York-based Center for Constitutonal Rights describe it, “[Donald] Trump’s proclamation that he will not release anyone from Guantánamo regardless of their circumstances is arbitrary, unlawful, and motivated by executive hubris and anti-Muslim animus.”

The lawyers submitted a habeas corpus petition for the men on January 11 this year, the 16th anniversary of the opening of the prison, as I explained in an article at the time, entitled, As Guantánamo Enters Its 17th Year of Operations, Lawyers Hit Trump with Lawsuit Stating That His Blanket Refusal to Release Anyone Amounts to Arbitrary Detention.

As I also explained in that article, “The eleven men 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.”

On January 18, as I explained in a follow-up article, Judge Colleen 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 its Guantánamo policy with respect to the men now petitioning the court,” as Scott Roehm, the Washington Director of the Center for Victims of Torture, explained in an article for Just Security, adding, “Specifically, the judge ordered the government to provide the following information by Feb. 16.”

In response, as I explained in another article, the government claimed that, because “the laws of war permit the detention of enemy combatants for the duration of a conflict,” the petititoners “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.”

Lawyers for the prisoners then responded by stating, “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,” and further explaining that “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,” and that “there is no legal support for perpetual detention of this sort,” and that “[p]erpetual non-criminal detention violates due process.”

Revisiting these arguments, CCR stated, in a press release a few days ago, “The government maintains that the continuing detention of our clients without charge or trial, and without a prospect of release, is normal. But it is not normal, as a matter of fact and law. We argue that the petitioners’ perpetual detentions violate the Due Process clause of the Constitution and the Authorization for Use of Military Force (AUMF). These ‘forever prisoners’ may never leave Guantánamo alive, unless the court intervenes.”

Reporting on the case, the Guardian explained that, unfortunately, the prisoners “will not be allowed to listen to oral arguments at their own hearing, as the Guantánamo administration said there [was] no single room at the camp where they could all be put in restraints while listening to a live feed,” adding that the court “accepted the absence of a room big enough for all the petitioners to be shackled to the floor as a valid reason for them not to hear a direct broadcast of their hearing, and that a recording or transcript at a later date was an adequate substitute.”

The Guardian then discussed the case of Tawfiq al-Bihani, who is represented by Reprieve, one of the organizations involved in the habeas petition, describing how he is “a Saudi-born Yemeni who was arrested in Iran in 2002, where he had fled bombing in Afghanistan,” and who “was flown back to Afghanistan and ultimately transferred to the US authorities.”

The Guardian added that, “According to his lawyers, he was handed over for a price, at a time when bounties were paid for bearded Arabs caught in the region around Afghanistan,” and, “According to the Senate Intelligence committee[‘s torture report, whose executive summary was made public in December 2014], he was taken to a CIA ‘black site’ secret interrogation centre, where he was one of 33 inmates subjected to ‘enhanced interrogation techniques,’ before being flown to Guantánamo.”

The Guardian also noted that al-Bihani “was cleared of any involvement in terrorism by US intelligence agencies in January 2010 and given his release papers on three occasions,” and, in 2016, “was even measured for new clothes he was going to wear on being freed, but his release was cancelled at the last minute.”

The Guardian also explained how the Trump administration “has continued to hold him citing ‘a variety of substantive concerns relevant to [his] circumstances, including factors not related to [Bihani] himself,’” prompting al-Bihani himself to ask, “What good is having a court case when there is no hope of justice?” according to his lawyers. He added, “I am still sitting here. Hearing about my court case just gets my hopes up, and my emotions go up and down like a see-saw. I’m happier without the meetings.”

Speaking of the prisoners’ exclusion from their own hearing, Shelby Sullivan-Bennis of Reprieve told the Guardian, “This latest affront to fairness and justice should shock every American, but sadly it doesn’t surprise us. None of the men Reprieve represents has ever been charged with a crime, and two have been cleared for transfer, but they remain stuck in Guantánamo, apparently indefinitely. That the US government now claims they can’t safely be chained to the floor, to hear their own lawyers argue that they should be tried or released, is the latest sick twist in a shameful saga with no end in sight.”

As the Guardian also explained, al-Bihani “has passed his 15 years on Guantánamo writing poetry and has more recently began painting in acrylics,” as his lawyers explained, adding that he also “watches wildlife documentaries, plays football and is following the World Cup.” The lawyers also explained that he is from “a family of 12 siblings,” and that his mother died during his long imprisonment.

“I am able to see the ocean here,” al-Bihani said to his lawyers, adding, “When I feel upset, seeing the ocean helps me go into a trance and deal with my emotions. I have not lost hope, but I got used to the rhythm here. It is the first place I have lived for this long. Before, at home, I was always moving.”

The Guardian also explained how Reprieve has pointed out how ruinously expensive it is to keep prisoners at Guantánamo, stating that “every day al-Bihani spends in Guantánamo costs the US $29,000. Altogether, it has cost more than $170m to keep him in the camp without charge.” On the mainland, in contrast, it costs only a little more than $29,000 to hold a prisoner for an entire year.

In its publicity before tomorrow’s hearing, CCR focused on their client Sharqawi Al Hajj, described as “a 43-year-old Yemeni who has been detained without charge for over 16 years, who is sick and on hunger strike, and for whom the prospect of years more in Guantánamo may mean a death sentence.”

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.

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, The Complete Guantánamo Files, 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.

11 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, about an important Guantanamo hearing tomorrow, in the District Court in Washington, D.C., where lawyers for eleven men still held, represented by the Center for Constitutional Rights, Reprieve and other organizations, will be hoping to persuade Senior Judge Thomas F. Hogan to rule that Donald Trump’s stated intention of not releasing anyone from Guantanamo means that the detention of those still held is “arbitrary, unlawful, and motivated by executive hubris and anti-Muslim animus.”
    I wish the lawyers all the best for their presentations tomorrow, and I hope Judge Hogan is fully aware of the importance placed on him, and his opportunity to make a stand for justice.

  2. Andy Worthington says...

    One of the eleven men seeking a favorable ruling from Judge Hogan is Ahmed Rabbani, who has written an op-ed for the New York Daily News, in which he states, “I still have faith, even after all this time, that a judge will see through this stupidity and understand what is really going on: This president has no plan for us. When he has a problem, he tries to ignore it until it goes away. The better solution would be to save the American taxpayer the $11 million per year it costs to keep me here. I may be nobody to him, but I am a very expensive nobody.”
    Rabbani’s article, ‘Let me out of Guantanamo: A detainee’s plea,’ is here (not available outside the US – or certainly not in Europe): http://www.nydailynews.com/opinion/ny-oped-let-me-out-of-guantanamo-20180710-story.html

  3. Andy Worthington says...

    Tony Sleep wrote:

    “Unfortunately, our website is currently unavailable in most European countries. We are engaged on the issue and committed to looking at options that support our full range of digital offerings to the EU market.”

    Needs a VPN!

  4. Andy Worthington says...

    I had to look that up, Tony! “Virtual private network.”
    I think this is all related to the new EU legislation, isn’t it? The General Data Protection Regulation (GDPR). I had to attempt to implement it for my Close Guantanamo website, but it was rather mind-boggling. Now I receive far less emails from organizations, and when I visit websites I’m regularly confronted by things I’m supposed to review before I can read what I came to the site to read. I either click yes without reviewing anything or I leave the site. It doesn’t seem to be a healthier world. We all still seem to be tracked by cookies when, tbh, we shouldn’t be tracked at all. The intention now, it appears to me, is that we fully consent to being permanently tracked.
    See: https://www.wired.com/story/europes-new-privacy-law-will-change-the-web-and-more/

  5. Andy Worthington says...

    Natalia R Scott wrote:

    I still feel horrible when I see the photo on the right. It’s still hard to believe these men were treated like that.

  6. Andy Worthington says...

    Yes, absolutely, Natalia. It’s why I’ve taken to using it a bit more than usual of late. It reminds us clearly what Guantanamo is.

  7. Andy Worthington says...

    On Facebook, Tashi Farmilo-Marouf posted numerous links critical of Judge Hogan’s record as a judge, to which I replied:

    Is Judge Hogan someone you’re particularly targeting, Tashi? That’s quite a list! On Guantanamo, though, he’s both experienced, knowledgeable, and not entirely unsympathetic. He was the senior judge who coordinated the District Court’s response to Boumediene v. Bush, “designated to coordinate and manage all Guantanamo cases so that they could be ‘addressed as expeditiously as possible as required by the Supreme Court in Boumediene v. Bush,'” as a Congressional Research Service (CRS) report explained in September 2008, which further explained that the position made him “responsible for identifying and ruling on procedural issues common to the cases.”
    In addition, in the habeas case he ruled on in 2009, that of Mua’ab al-Madhwani, although he denied his habeas petition, he made a point of criticizing the basis on which he was obliged to do so, calling al-Madhwani a “model prisoner’ who was no more dangerous than many other prisoners who had been released: http://www.andyworthington.co.uk/2009/12/15/model-prisoner-at-guantanamo-tortured-in-the-dark-prison-loses-habeas-corpus-petition/
    CRS report here: https://fas.org/sgp/crs/natsec/RL34536.pdf
    The Facebook post is here: https://www.facebook.com/andyworthingtonUK/posts/10156632569723804

  8. Tom says...

    Trump also thinks it’s normal for military lawyers to prosecute 5 year olds in immigration courts.

  9. Andy Worthington says...

    I have struggled to comprehend how all of this has been allowed to happen, Tom, but have concluded that it is because Trump, a man of almost zero mental dexterity, fixes on hs obsessions and then demands that policies are implemented that follow them, regardless of the consequences.
    Here are the most recent stories about the human rights disaster that his Mexican border policy triggered:
    ‘Trump administration to miss deadline to reunite all children under five with families’, July 9: https://www.theguardian.com/us-news/2018/jul/09/trump-children-separated-families-deadline-missed-immigration-law
    and ‘Trump forced to reinstate “catch and release” after court defeats’, July 10: https://www.theguardian.com/us-news/2018/jul/11/trump-forced-to-reinstate-catch-and-release-after-court-defeats
    He arrives in the UK tomorrow, and big protests are expected, which I approve of, obviously, but far too many of my fellow citizens, it seems to me, don’t recognize that the biggest threat to the UK comes from our own government, and not Donald Trump, disgusting though he is.

  10. Tom says...

    What Trump really wants is to literally get rid of all Muslims and non whites. Kill all of them? That’s mass genocide, and not even an egotistical idiot like Trump would be that insane to do that. Deport all of them? Where would they get the money? This means do away with various things. No minimum wage. Work insane hours with no job security. Destroy all unions. And lock up as many non whites as possible in for profit prisons. Completely destroy health care. Only rich and powerful white Republicans are allowed to have the best care money can buy. Because they are rich and powerful white people. That’s why.

    Go back to segregation, lynchings and where you can openly tell these ____ing ______s to stay in their place. No more of this coded Reagan era racism. _____, shut the _____ up.

  11. Andy Worthington says...

    Yes, it’s depressing to have such a blatant racist in then White House, Tom. We’re living in dangerous times.

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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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