Really? Trump Lawyer Argues in Court that Guantánamo Prisoners Can Be Held for 100 Years Without Charge or Trial

16.7.18

Protestors with Witness Against Torture outside the Supreme Court on January 11, 2017, the 15th anniversary of the opening of Guantanamo (Photo: Andy Worthington).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.

 

Last Wednesday, as I flagged up in a well-received article the day before, lawyers for eleven of the 40 prisoners still held at Guantánamo finally got the opportunity to follow up on a collective habeas corpus filing that they submitted to the District Court in Washington D.C. on January 11, the 16th anniversary of the opening of the prison. The filing, submitted by lawyers from organizations including the Center for Constitutional Rights (CCR) and Reprieve on behalf of 11 of the remaining 40 prisoners, argued, as CCR described it after the hearing, that “their perpetual detention, based on Trump’s proclamation that he will not release anyone from Guantánamo regardless of their circumstances, is arbitrary and unlawful.”

CCR added that the motions of eight of the 11 men were referred to Senior Judge Thomas F. Hogan, who heard the argument today”, and stated that the lawyers had “asked the judge to order their release.”

CCR Legal Director Baher Azmy, who argued the case in court, said after the hearing, “Our dangerous experiment in indefinite detention, after 16 years, has run its course. Due process of law does not permit the arbitrary detention of individuals, particularly at the hands of a president like Donald Trump, who has pledged to prevent any releases from Guantánamo. That position is based not on a meaningful assessment of any actual threat, but on Trump’s animosity towards Muslims, including these foreign-born prisoners at Guantanamo — the height of arbitrariness. Short of judicial intervention, Trump will succeed.”

As CCR explained, “Azmy told the court that, 16 years into Guantánamo’s operation, any legitimate rationale for detaining these men has expired. Indeed, two of the men who joined the challenge are cleared for transfer by the government; despite that, they, like other detainees, face the prospect of life in prison. Others are aging and in ill health. Last month, the prison’s commanders told reporters that they were planning for 25-35 more years of detention operations, including construction of a prison hospice wing.”

Sharqawi Al Hajj, a 43 year-old Yemeni prisoner represented by CCR, who joined the motion and has been detained without charge since 2002, including being held and tortured in CIA “black sites,” said, “The government says my detention is legal because of the indefinite war against terrorism. When terrorism ends, the war will end. So, never. Even though I expected such a response, I was still shocked at the idea that I am such a threat that the government wants to keep me here at a cost of millions every year.”

In an important additional comment, al-Hajj said, “Let’s even assume I did wrong 17 years ago, but that I want to change and have changed. Where is there room for that? The government doesn’t want to hear about it.” This is indeed shockingly true. While prisoners of war can be expected to be released when a war ends, and while anyone charged with a crime can expect a trial, and if convicted, a sentence that will end with them having paid their debt to society, the “forever prisoners” of Guantánamo are, to all intents and purposes, regarded as perpetually dangerous, with no way of them being able to demonstrate otherwise.

CCR also noted that al-Hajj, “who is sick and on hunger strike,” continued, “I feel like I am dead but still breathing. Seventeen years have gone from my life. I’ve been deprived of my family. Every day I have a new ailment. If I think about it too much I’ll lose my mind. I’m asking the judge to protect justice. I don’t present a threat. Show me how I can convince you that I don’t pose a threat to anybody. Just show me the way and I will follow it.”

In a separate press release, Reprieve noted how “[t]he Trump administration’s lawyers claim their detention is not indefinite – which would violate the US Constitution as well as international law — but “indeterminate,” a semantic distinction that lawyers for the men challenged in court.”

Shockingly, as Reprieve also reported, at one point in the hearing Judge Hogan “asked US Justice Department attorney Ronald Wiltsie whether the Government’s legal justification for detaining the men, based on the Authorization for the Use of Military Force, would allow them to be imprisoned for 116 years — the duration of the Hundred Years’ War between England and France.”

“Yes,” Wiltsie replied, adding, “We are still engaged with the same battle foes in the same battle space.”

As Reprieve added, “In a war without end, the men are perpetually detained.”

Reprieve represents four of the petitioners, including two men, Abdullatif Nasser, a Moroccan, and Tawfiq al-Bihani (aka Towfiq al Bihani), a Yemeni, who have been unanimously approved for release by high-level government review processes involving the defense and security agencies, but who “remain imprisoned, apparently with no hope of being released.”

Shelby Sullivan-Bennis, the legal counsel for Nasser and al-Bihani (and Reprieve’s five other Guantánamo clients), said, “Keeping these men behind bars forever, when the government’s own investigators have determined that they committed no crime and pose no threat, is a shocking violation of the USA’s founding principles.”

She added, “Guantánamo Bay is a global symbol of injustice, and a recruitment tool for America’s enemies. It has made us less safe, at huge expense to taxpayers, while doing lasting damage to the USA’s reputation as a beacon for fairness and liberty.”

Another of Reprieve’s clients, Abdulmalik Bajabu, a Kenyan, and one of the last prisoners to arrive at Guantánamo, in 2007, is another of the petitioners. Reprieve noted that, “In his last phone call with Shelby Sullivan-Bennis, he expressed hope that he will eventually be released.”

As he said, “In Guantánamo there are not any rights. Might is right. The administration has power and you can do nothing. But people in America are good people — they don’t know what is going on in GTMO. I don’t lose heart, no matter what will come. I don’t know if I’ll wake up tomorrow, so I try to live for each day. We are all still praying but to be free is to be free in your heart. After all, people out there who have cancer suffer too, but try to make the most of their lives. Still, if the judge truly took an oath to do what is right then he will do what is right.”

Reporting on the case for the Washington Post, Missy Ryan noted that attorneys for the men “said the Trump administration had violated prisoners’ rights because it did not intend to try them or resettle them overseas,” and argued that, “[w]ithout court intervention … the government would allow the prisoners to die in detention without having a trial or being reunited with their families.”

Ryan noted that Baher Azmy said in court, “There have to be some limits.” She added that “[m]uch of the hearing revolved around the government’s assertion that it could continue to hold the detainees until hostilities against the United States cease, no matter how long that takes,” as mentioned above, also noting that the DoJ’s Ronald Wiltsie had also claimed that the authorities “had a responsibility to detain suspects who could pose a future threat, even if it was not clear they would actually take any action against the United States.”

This was what prompted the 100 Years War analogy referred to above, with Wiltsie saying, as Ryan reported, “We could hold them for 100 years if the conflict lasted 100 years. You cannot tell when hostilities end until they have ended.”

In the Miami Herald, Carol Rosenberg added that Judge Hogan “openly questioned whether he could reinterpret higher court rulings on what laws apply to non-citizens held in offshore military detention,” but “agreed with the prisoners’ lawyers that Guantánamo captives have been held as long as some convicted criminals have served ‘very serious sentences’ in the United States.” He also “framed the inmates’ argument to say that they were trapped in a ‘no-man’s land’ or a ‘Catch-22.’”

For the Post, meanwhile, Missy Ryan also noted that Baher Azmy said that the government had “distorted” the Authorization for Military Force, the law passed in the days after 9/11, which authorized the president to pursue and imprison those he regarded as being connected to al-Qaeda and/or the Taliban “by using it as a basis for indefinite imprisonment.” In the Post’s words, “He said insurgent wars, waged against small, clandestine and evolving bands of militants, could go on forever. But laws governing wars were devised with conflicts between states in mind.”

For Wiltsie, however, “the US military was still ‘engaged against the compatriots’ of the men held at Guantánamo” — a reference to the US’s ongoing presence in Afghanistan, and its continued military engagements with the Taliban and other militant groups. As the Post put it, “the Pentagon says that al-Qaeda has been largely defeated in Central and South Asia,” but “officials believe that a small number of extremist holdouts remain in strongholds in Afghanistan and Pakistan and retain the ambition to strike the West.” However, it should be noted that this connection must really be regarded as quite shockingly tenuous, given how the Taliban of today bears little resemblance to that of 2001, and other militant groups almost certainly have no connection to anyone held at Guantánamo, and nor should it be taken at face value that the US authorities believe that there are still players who “retain the ambition to strike the West.”

The Post also noted that discussions in court also focused on the significance of Donald Trump’s position regarding releases from the prison, with attorneys for the men stating that “the government’s apparent refusal to resume resettlements is an indication they intend to allow the men to die in prison,” and Wiltsie claiming, in response, that “the administration had not shut the door to future transfers,” adding that, although the Trump administration had shut the office of the envoy for Guantánamo closure, which President Obama had established, and which had been extremely important in arranging prisoner releases and in monitoring prisoners after their release, “prisoner transfers could resume at a later date.”

At this point, Hogan intervened to challenge the government’s assertion, pointing out that, as the Post put it, “despite Trump’s 2018 executive order asking the Pentagon to develop a new transfer policy, the president had clearly stated his opposition to that idea in previous statements, in what Hogan characterized as his ‘Twitter position.’”

In conclusion, the Post noted that Judge Hogan “expressed sympathy with the detainees’ long imprisonment, but he questioned whether it was his court’s place to overturn the rulings of higher courts.” He also “did not say how he would rule.”

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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11 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    In my latest article, I provide a round-up of the important Guantanamo habeas corpus hearing that took place in the District Court in Washington, D.C. last week, when lawyers for eleven men still held asked Judge Thomas Hogan to order their release, on the basis that, as the Center for Constitutional Rights described it, “their perpetual detention, based on Trump’s proclamation that he will not release anyone from Guantanamo regardless of their circumstances, is arbitrary and unlawful.” Judge Hogan seemed attentive, and directed probing questions to the Justice Department lawyers seeking to defend the indefensible (endless imprisonment without charge or trial), but it is impossible to say how he will rule. However, he should clearly take the prisoners’ side when the DoJ argues that the US “could hold them [the prisoners] for 100 years if the conflict lasted 100 years. You cannot tell when hostilities end until they have ended.”

  2. Andy Worthington says...

    Jan Strain wrote:

    Which means they are, in fact, POWs which falls under the purview of the IHL and ICC

  3. Andy Worthington says...

    Yes, it absolutely should do, Jan, but we can’t get anywhere near that truth. The prisoners are held according to the Authorization for Use of Military Force (AUMF), and the Supreme Court established in 2004 that the AUMF allowed detention until the end of hostilities, thereby endorsing detention under the AUMF as a kind of parallel version of the Geneva Conventions, but one unilaterally created and endorsed by the US. Is this an extraordinary example of American exceptionalism, or what?

  4. Andy Worthington says...

    Rick Triangle wrote:

    Good point, Jan! 🙂 So, as POWs, that would push their fate to the Hague in prosecuting War Crimes related to their Unlawful Detention? #Apricot45 seems like he would ignore any international decisions though. Our Courts in the US may be the best chance. Maybe attack the problem with Both Courts? What do you think, Andy and Jan???

  5. Andy Worthington says...

    See above, Rick. The courts won’t touch it, because the Supreme Court has already ruled that it’s OK to hold people until the end of hostilities,” and no one wants to hear about the end of hostilities actually being fixed in time. Our best hope now is Judge Hogan – and also efforts to get the D.C. Circuit Court to look again at its shameful 2010-2011 rulings gutting habeas corpus of all meaning for the Guantanamo prisoners.

  6. arcticredriver says...

    Andy, thanks for keeping these issues alive!

    I am so frustrated by the notion when Americans want to have their cake and eat it too. Lots of apologists for the Guantanamo system claim that the Geneva Conventions authorize the USA to hold the Guantanamo captives until hostilities cease — ignoring that it was the position of the Bush administration that no one captured in Afghanistan or Pakistan, or really anywhere but Iraq, was entitled to the protections of the Geneva Conventions.

    You wrote that “the Supreme Court established in 2004 that the AUMF allowed detention until the end of hostilities” Hmm. That is a point I missed, but troubling, because Americans should remember that, when one of its domestic laws is in conflict with its International treaty obligations, the International treaty obligations trump the domestic law. This is true for any country. There is a strain in the USA that hates any instance when some foreigners try to tell America how to govern itself. There was, maybe still is, a meme, among the American right, that represented the United Nations as a powerful threat to US sovereignty, whose secret armies would mobilize, and confiscate all their guns, using black helicopters

    There are international agreements that require nations to never arbitrarily seize, and imprison, the citizens of another nation. Nations are allowed to arrest the citizens of another nation, when they think they have evidence that individual committed a crime in their territory, and they think they can charge and convict that individual, at a fair trial.

    It doesn’t always happen, but it can be considered an act of war, and escalate to actual warfare. Iranians seized some RN sailors, a few years ago, claiming their small boat had entered Iranian waters. This triggered a lot of saber rattling.

    I see it as an outrage that the USA has insisted that they could both apprehend individuals, and hold them until hostilities cease — and not accord them the protections of the Geneva Conventions.

    From my reading of the Geneva Conventions, it is only through classifying individuals as “combatants”, through a Geneva Convention compliant tribunal, that any country, including the USA, is authorized to imprison individuals, without charging them with a crime in a fair justice system.

  7. Andy Worthington says...

    Jan Strain wrote:

    Andy, the ICC won’t go up against the US – at least not now. As for the Supremes and the AUMF, the US has tortured as well as denied civil and human rights under that same AUMF. We broke both the Geneva Conventions and our own AUMF. A pox on them all/both and anyone else that thinks we hold the high ground here.

  8. Andy Worthington says...

    It’s really astonishing, isn’t it, Jan, how much people can fail to recognize the truth about their own countries. The depressing thing is that this has been going on for such a long time. The only time significant numbers of people woke up to the scale of the lies was in the 60s and 70s in the US, and I’d say, from the 70s to the 90s in the UK (apologies if I underestimate US resistance in the 80s and 90s).
    But for the last 20 years, despite the huge resistance to the Iraq War in 2003, our political establishments have been striving, with their backers in the corporate media, to restore their control, with, it seems to me, considerable mainstream success.
    Of course, there’s also been another narrative developing, which is the large numbers of people who feel – or are – marginalized, and that’s where it starts to get really weird, as that’s where Trump and Brexit have been flourishing, but if anything they’re even more alarmingly nationalistic than the mainstream culture.
    So a pox on nationalism, as well as on deluded notions of exceptionalism, both in the US and the UK!

  9. Andy Worthington says...

    Good to hear from you as always, arcticredriver, and I’m glad to have been able to add an important detail to the whole sordid “war on terror” story in which America abdicated its domestic and international legal responsibilities.
    I’ve been searching for my own references to the Hamdi ruling, and found this, which is quite a good round-up that I wrote in 2011: http://www.andyworthington.co.uk/2012/05/02/the-permanent-injustice-of-guantanamo/
    And while there’s no specific mention of Hamdi and detention in this Lawfare article, I thought it was helpful to have their opinion in one place regarding post-9/11 detention policies: https://www.lawfareblog.com/guantanamo-litigation-history
    As ever, though, the establishment of Lawfare as the definitive academic national security forum appals me. Just their tagline is sufficient to let us know how lawlessness has been normalized – “Hard national security choices.”

  10. Tom says...

    I know a lot of this is about power. Trump uses the resources of the Dept. of Justice to justify literally anything he wants to do. Yes, he’s not the first President to do that. But nobody laughs these attorneys out of court? Nobody gets them disbarred? Because their govt. attorneys and not private ones.

  11. Andy Worthington says...

    And Trump’s the third president to use the Justice Department to keep Guantanamo open, Tom. The story of Obama and Eric Holder, and why no one reined in the Justice Department lawyers – specifically, in relation to the prisoners’ habeas corpus cases – has never, to be the best my knowledge, been told.
    Sadly, most people don’t care what is done in their name.

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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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