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

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.” Read the rest of this entry »

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

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.

Guantánamo Lawyers Urge International Criminal Court to Investigate US Torture Program

An image produced by AMICC (the American NGO Coalition for the International Criminal Court), which advocates for US participation in the ICC. The image was produced in 2016, in an article about the ICC's possible investigation into war crimes in Afghanistan, including those in which US forces were involved.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.

 

Ever since evidence first emerged of the US’s post-9/11 torture program — most conspicuously, via the photos of abuse in Abu Ghraib that were revealed in 2004, and the network of CIA “black sites” that were first revealed in the media in late 2005 — opponents of torture have sought to hold accountable those responsible for implementing torture in its various forms: in the CIA’s global network of “black sites,” in proxy prisons in other countries, in Afghanistan and Iraq, and at Guantánamo.

Their efforts have persistently been thwarted. President Obama, notoriously, used the “state secrets doctrine” to prevent torture victims from having their day in the US court system (check out the Jeppesen case in 2010, for example), and, earlier that year, after an internal Justice Department investigation into John Yoo and Jay Bybee, who wrote and approved the notorious “torture memos” of 2002 that purported to re-define torture so that it could be used by the CIA, concluded that they were guilty of “professional misconduct,” the Obama administration allowed a DoJ fixer to override that conclusion, deciding instead that they had merely exercised “poor judgment.”

In December 2014, an important step towards the truth came with the publication of the executive summary of the Senate Intelligence Committee’s report into the CIA’s post-9/11 detention program (the Senate torture report, as it is more colloquially known), which delivered a devastating verdict on the program, even if it was not empowered to hold anyone accountable. And last August, there was good news when James Mitchell and Bruce Jessen, former military psychologists who had developed the torture program for the CIA, settled out of court — for a significant, but undisclosed amount — with several survivors of the rendition and torture program, and the family of another man, Gul Rahman, who had died in Afghanistan. Read the rest of this entry »

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

After launching the new lawsuit against Donald Trump, lawyers with the Center for Constitutional Rights came to the White House to join the annual protest against Guantanamo's continued existence (on the left, legal director Baher Azmy, and on the right, Omar Farah and Pardiss Kebriaei. In the center is Advocacy Program Manager Aliya Hussain (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, including my current visit to the US.

 

January 11 was the 16th anniversary of the opening of the prison at Guantánamo, and as campaigners (myself included) were making their way to the White House to prepare for the annual protest against the prison’s continued existence — the first under Donald Trump — and, in my case, to launch the new poster campaign counting how many days Guantánamo has been open, and urging Donald Trump to close it, lawyers with the Center for Constitutional Rights and Reprieve were launching a new lawsuit at the National Press Club prior to joining the protesters.

The lawsuit was brought on behalf of eleven prisoners, and, as CCR’s press release states, it “argues that 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 Senior Staff Attorney Pardiss Kebriaei said, “It’s clear that a man who thinks we should water-board terror suspects even if it doesn’t work, because ‘they deserve it, anyway’ has no qualms about keeping every last detainee in Guantanamo, so long as he holds the jailhouse key.”

CCR’s press release also stated, “The 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,” adding 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.” Read the rest of this entry »

New York Times Finally Reports on Trump’s Policy of Letting Guantánamo Hunger Strikers Die; Rest of Mainstream Media Still Silent

An image of Guantanamo by Sami al-Haj, as reproduced by British artist Lewis Peake in 2008, based on a drawing by Sami that the Pentagon censors refused to allow the public to see. The drawing, one of a series of five, was commissioned by Sami's lawyers at the lawyer-led international human rights organization Reprieve.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.

 

So today, five days after the lawyer-led human rights organization Reprieve issued a press release, about how two of their clients had told them that, since September 20, prisoners on a long-term hunger strike were no longer being force-fed, and four days after I reported it (exclusively, as it turned out), the New York Times emerged as the first — and so far only — mainstream media outlet to cover the story, although even so its headline was easy to ignore: “Military Is Waiting Longer Before Force-Feeding Hunger Strikers, Detainees Say.”

As Charlie Savage described it, military officials at Guantánamo “recently hardened their approach to hunger-striking prisoners,” according to accounts given by prisoners to their lawyers, “and are allowing protesters to physically deteriorate beyond a point that previously prompted medical intervention to force-feed them.”

“For years,” Savage continued, “the military has forcibly fed chronic protesters when their weight dropped too much. Detainees who refuse to drink a nutritional supplement have been strapped into a restraint chair and had the supplement poured through their noses and into their stomachs via nasogastric tubes.” Read the rest of this entry »

Trump’s Disturbing New Guantánamo Policy: Allowing Hunger Strikers to Starve to Death

A hallucinatory image of force-feeding at Guantanamo by Sami al-Haj, as reproduced by British artist Lewis Peake in 2008, based on a drawing by Sami that the Pentagon censors refused to allow the public to see. The drawing, one of a series of five, was commissioned by Sami's lawyers at Reprieve, the London-based legal action charity.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.

 

Disturbing news from Guantánamo, via the human rights organization Reprieve. Yesterday, in a press release, Reprieve explained that the authorities at Guantánamo have stopped force-feeding hunger-striking prisoners, a practice that has existed for ten years, because of a new Trump administration policy.”

Hunger strikers have existed at Guantánamo almost since the prison opened, and in 2013 a prison-wide hunger strike drew worldwide condemnation for President Obama’s inaction in moving towards closing the prison, as he had promised on his second day in office. Inconvenienced by Republican lawmakers, who had raised considerable obstacles to the release of prisoners, Obama had chosen not to challenge the Republicans, and had, instead, done nothing. The hunger strike changed all that, but towards the end of 2013, after the release of prisoners resumed, the authorities at Guantánamo stopped reporting the numbers of men who were on a hunger strike.

According to Reprieve, since that time, some prisoners have continued with their hunger strikes, “peacefully protesting a lack of charges or a trial,” although very little has been heard about them, with just one example reported in recent years — that of Sharqawi al-Hajj, a Yemeni held without charge or trial at Guantánamo since September 2004, whose case I reported on last month, when he weighed just 104 pounds, and when, after he refused to submit to being force-fed, he “lost consciousness and required emergency hospitalization.” Read the rest of this entry »

Back to home page

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.
Email Andy Worthington

CD: Love and War

Love and War by The Four Fathers

The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

Stonehenge: Celebration & Subversion book cover

Stonehenge: Celebration & Subversion

Outside The Law DVD cover

Outside the Law: Stories from Guantánamo

RSS

Posts & Comments

World Wide Web Consortium

XHTML & CSS

WordPress

Powered by WordPress

Designed by Josh King-Farlow

Please support Andy Worthington, independent journalist:

Archives

In Touch

Follow me on Facebook

Become a fan on Facebook

Subscribe to me on YouTubeSubscribe to me on YouTube

Andy's Flickr photos

Campaigns

Categories

Tag Cloud

Afghans in Guantanamo Al-Qaeda Andy Worthington British prisoners CIA torture prisons Close Guantanamo David Cameron Donald Trump Four Fathers Guantanamo Housing crisis Hunger strikes London Military Commission NHS NHS privatisation Periodic Review Boards Photos President Obama Reprieve Shaker Aamer The Four Fathers Torture UK austerity UK protest US courts Video We Stand With Shaker WikiLeaks Yemenis in Guantanamo