Guantánamo and the U.S. Courts: When Is A War Not Over? Apparently, When It’s the “War on Terror”

Guantánamo prisoner Khalid Qassim, and Senior Judge Thomas Hogan, of the District Court in Washington, D.C., who is responsible for delivering a ruling in a case brought by Qassim, whose lawyers are seeking to have Judge Hogan order his release, on the basis that he was nothing more than a foot soldier in Afghanistan at the time of his capture over 21 years ago, and that, as such, the U.S. government can no longer claim any right to hold him, after the complete withdrawal of U.S. troops from Afghanistan in August 2021.

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It’s a sign of the fundamental lawlessness of Guantánamo that, 19 months since the United States decisively brought to an end its nearly 20-year military presence in Afghanistan by withdrawing all its troops, a Guantánamo prisoner — who is not alleged to have been anything more than a foot soldier for the Taliban at the time of the 9/11 attacks and the subsequent U.S.-led invasion of Afghanistan — is fighting in a U.S. court to try to get a judge to recognize that, given the definitive end to the U.S.’s involvement in hostilities in Afghanistan, he must be freed.

The prisoner in question is Khalid Qassim (aka Qasim), a Yemeni who has been held for nearly 21 years without charge or trial at Guantánamo, and is still held, even though, last July, a Periodic Review Board (a parole-type review process introduced by President Obama) approved him for release, recognizing his “low level of training and lack of a leadership role in al Qaida or the Taliban.”

This was an important decision, which finally brought to an end the U.S. government’s insistence that it could continue to hold him not because of anything he was alleged to have done prior to his capture, but because of concerns regarding his lack of compliance during his imprisonment at Guantánamo.

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In Abu Zubaydah Case, Justice Gorsuch Lays Bare the US Government’s Shameful and Enduring Torture Problem

An image using a photo of Abu Zubaydah at Guantánamo, created by Brigid Barrett for an article in Wired in July 2013.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

As we settle into the third decade since the 9/11 attacks, and the US’s brutal and counter-productive response to it — the establishment of the prison at Guantánamo Bay, and a global program of kidnapping, rendition and torture in CIA “black sites” — the US government is still furiously engaged in efforts to hide the evidence of what it did to whom, and where, even though much of that information is in the public domain, and has been for many years.

A case in point is a recent Supreme Court ruling in the case of Abu Zubaydah, for whom the post-9/11 torture program was first developed, in the mistaken belief — which the US government has since walked back from — that he was a major player in Al-Qaeda. Zubaydah, a stateless Palestinian, whose real name is Zain al-Abidin Muhammad Husayn, was seized in a house raid in Pakistan on March 28, 2002, and was taken to the CIA’s first black site, in Thailand. He was then moved to further “black sites” in Poland, in Guantánamo itself, and in Morocco and Lithuania, before ending up back at Guantánamo in September 2006, with 13 other “high-value detainees,” where he has been held ever since without charge or trial.

The case before the Supreme Court didn’t involve the question of whether, after 20 years, Abu Zubaydah should be released, as one of a number of “forever prisoners” who have never been charged, although that is a perfectly valid question — and one that, in the last year, prompted 99 lawmakers to write to President Biden to urge him to release everyone still held at Guantánamo who hasn’t been charged, a total of 26 of the 38 men still held, including Abu Zubaydah.

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Never-Ending Injustice: State Secrets and the Torture of Abu Zubaydah

An illustration featuring Abu Zubaydah by Brigid Barrett from an article in Wired in July 2013. The photo used is from the classified military files from Guantánamo that were released by WikiLeaks in 2011.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

On Wednesday, the Supreme Court heard arguments in the case of the notorious torture victim and Guantánamo prisoner Abu Zubaydah, for whom the US’s post-9/11 torture program was invented. Zubaydah, whose real name is Zayn al-Abidin Muhammad Husayn, was held and tortured in CIA “black sites” for four and a half years, after his capture in a house raid in Pakistan in March 2002, until his eventual transfer to Guantánamo with 13 other so-called “high-value detainees” in September 2006, and he has been held there without charge or trial ever since.

Wednesday’s hearing was the result of an appeal by the government against a ground-breaking ruling two years ago, by the Ninth Circuit Court of Appeals, in which the judges openly declared that Abu Zubaydah had been tortured. It was, as Abu Zubaydah’s attorney, Cornell University law professor Joseph Margulies, explained, “the first time an appellate court” had “come right out and said that the enhanced interrogation techniques were torture.”

While this was significant, it wasn’t the main topic of the case, which involved the state secrets privilege, whereby government officials can argue that sensitive information whose disclosure, they claim, might endanger national security, must not be disclosed in a court. Abu Zubaydah’s lawyers were — and still are — seeking permission for the architects of the torture program, the contractors James Mitchell and Bruce Jessen, to be questioned about the details of his torture while he was held in a “black site” in Poland, in 2002-03, after his initial torture in a “black site” in Thailand in 2002, for use in the Polish government’s ongoing investigation.

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Fighting Guantánamo in the Courts Under President Biden

Three of the Guantánamo prisoners who are currently seeking their release from the prison through the US courts. From L to R: Khalid Qassim and Abdulsalam al-Hela, both Yemenis, and Asadullah Haroon Gul, an Afghan.

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I wrote the following article (as “The Ongoing Legal Struggles to Secure Justice for the Guantánamo Prisoners Under President Biden”) for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

In the nineteen unforgivably long years since the “war on terror” prison at Guantánamo Bay was first established, lawyers have worked tirelessly to challenge and overturn the Bush administration’s outrageous contention that everyone who ended up at Guantánamo was an “enemy combatant” with no rights whatsoever, who could be held indefinitely without charge or trial.

There have been victories along the way, but the sad truth is that Guantánamo’s fundamental lawlessness remains intact to this day. Since 2010, only one prisoner has been freed because of the actions of lawyers and the US courts (a Sudanese man whose mental health issues persuaded the Justice Department, in this one instance only, not to challenge his habeas corpus petition), and, as the four years of Donald Trump’s presidency showed, if the president doesn’t want anyone released from Guantánamo, no legal avenue exists to compel him to do otherwise.

The lawyers’ great legal victories for the Guantánamo prisoners came in the Supreme Court in what now seems to be the distant, long-lost past. In June 2004, in Rasul v. Bush, the Supreme Court ruled that the prisoners had habeas corpus rights; in other words, the right to have the evidence against them objectively assessed by a judge. That ruling allowed lawyers into the prison to begin to represent the men held, breaking the veil of secrecy that had allowed abusive conditions to thrive, but Congress then intervened to block the habeas legislation, and it was not until June 2008 that the Supreme Court, revisiting Guantánamo, ruled in Boumediene v. Bush that Congress had acted unconstitutionally, and affirmed that the prisoners had constitutionally guaranteed habeas rights.

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Abu Zubaydah Files Complaint About Torture and Ongoing Imprisonment at Guantánamo with UN Arbitrary Detention Experts

Abu Zubaydah: illustration by Brigid Barrett from an article in Wired in July 2013. The photo used is from the classified military files from Guantánamo that were released by WikiLeaks in 2011.

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On Friday, Abu Zubaydah (Zayn al-Abidin Muhammad Husayn), a notorious victim of torture in the CIA’s “black site” program, who has been held without charge or trial at Guantánamo since September 2006, submitted a complaint to the UN Working Group on Arbitrary Detention, regarding the lawless nature of his imprisonment and treatment since he was first seized in a house raid in Pakistan in March 2002.

The case has been submitted by Helen Duffy, Abu Zubaydah’s international legal representative since 2010, who represented him in his successful cases before the European Court of Human Rights regarding his “black site” detention in Poland and Lithuania, and the complaint accuses seven countries of having responsibility for his long imprisonment and mistreatment — not only (and primarily) the US, but also Thailand, Poland, Morocco, Lithuania and Afghanistan, the five countries in which he was held in “black sites” over a period of four and a half years, and the UK, which is accused of having “participated in other ways in the ‘global spider’s web’ of complicity in rendition,” primarily via “estimates that UK personnel were involved in approximately 2,000-3,000 interviews of CIA detainees in the aftermath of 9/11”, as indicated by the findings of the UK Parliament’s Intelligence and Security Committee (ISC) in 2019.

In a press release, Duffy explains that this is “the first international case brought by Zubaydah against the United States,” and is also “the first time that international legal action is taken against the UK, Afghanistan, Morocco and Thailand for their complicity in the US rendition and secret detention program.” In addition it is “the first time that a case has been brought against all states participating in an individual’s rendition and torture and ongoing unlawful detention at Guantánamo.”

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The New York Times’ Linda Greenhouse on Guantánamo: “Born in Fear and Sustained Through Political Cynicism and Public Indifference”

Guards in a watchtower at Guantánamo Bay.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

Two weeks ago, the 18 year-long struggle by lawyers, NGOs and all decent people to bring justice to the men held at Guantánamo reached a new low point in the court of appeals (the D.C. Circuit Court) in Washington, D.C., as I explained at the time in an article entitled, Trump-Appointed Appeals Court Judge Rules That Guantánamo Prisoners Don’t Have Due Process Rights.

The judge in question, Judge Neomi Rao, appointed by Donald Trump last year, is an enthusiastic supporter of the opposition, by various judges in the court, to the landmark Supreme Court case Boumediene v. Bush, decided in June 2008, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners.

That ruling led to the only time in Guantánamo’s history when the law has successfully applied at the prison. From 2008 until 2010, 38 prisoners had their habeas corpus petitions granted by District Court judges, and the majority of those men were released.

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US Supreme Court Supports Lifelong Imprisonment Without Charge or Trial at Guantánamo; Only Justice Breyer Dissents

Guantánamo prisoner and Yemeni citizen Moath al-Alwi, in a photo from Guantánamo included in his classified military file, dated March 2008, and released by WikiLeaks in April 2011, after being leaked by Chelsea Manning. Al-Alwi has been held without charge or trial for over 17 years, but last week had his request for a Supreme Court review of his case turned down.

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. If you can help, please click on the button below to donate via PayPal.





 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

Remember when the US courts used to guarantee the rights of any individual not to be imprisoned indefinitely without charge or trial, in defiance of all accepted domestic and international laws and treaties?

Yes, so do we, but unfortunately all that changed nearly 15 years ago, when the Supreme Court, in a case called Hamdi v. Rumsfeld, dealing with the sole US citizen held at Guantánamo, Yasser Hamdi, born in Baton Rouge, Louisiana in 1980, but living in Saudi Arabia since he was a child, ruled that foreign prisoners held at Guantánamo could be — yes, you guessed it — imprisoned indefinitely without charge or trial.

Hamdi, seized in Afghanistan in December 2001, had been held at Guantánamo until the US authorities realized that he was a US citizen, at which point he was moved to a military brig on the mainland, where he became one of three US citizens or residents held as “enemy combatants” and subjected to torture (the others being US citizen Jose Padilla, and legal resident Ali al-Marri).

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Remembering Judge John J. Gibbons, The Man Who Brought Habeas Corpus to Guantánamo

Judge John J. Gibbons, who has died aged 94, and prisoners at Guantanamo on the prison's opening day, January 11, 2002. Judge Gibbons successfully argued for their habeas corpus rights before the Supreme Court in 2004.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. If you can help, please click on the button below to donate via PayPal.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

Here at “Close Guantánamo,” we are saddened to hear of the death, at the age of 94, of Judge John J. Gibbons, who was one of the signatories to our initial mission statement when we first launched “Close Guantánamo” on January 11, 2012, the 10th anniversary of the opening of the prison. Appointed in 1970 to the United States Court of Appeals for the Third Circuit, in Philadelphia, by Richard Nixon, he served on that court for 20 years, the last three as Chief Judge. While at the court, he authored more than 800 opinions.

When he left the bench, Judge Gibbons became a Professor of Law at Seton Hall University School of Law in New Jersey, and also rejoined the firm he had been part of prior to becoming a judge, which become known as Gibbons, Del Deo, Dolan, Griffinger & Vecchione in 1997, and then Gibbons P.C. in 2007.

Although he was a Republican, and, as Chris Hedges noted in a New York Times profile in February 2004, “his politics tend[ed] to veer to the conservative,” he was also “at once an insider and an outsider,” something of a “gadfly” at his largely corporate firm, where he was “one of the state’s leading crusaders against the death penalty.” He had, he told Hedges, “always been outraged by the use of the death penalty,” which was why his firm “filed ‘friend of the court’ briefs in almost every death penalty case in New Jersey.” Read the rest of this entry »

Karen Greenberg on Brett Kavanaugh, and How Guantánamo is Poisoning US Law

Brett Kavanaugh consumed with anger during his Senate Judiciary Committee hearing prior to his confirmation as a Supreme Court justice, and a photo of Guantanamo on the day it opened, 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.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

In the 21 months since Donald Trump became president, it has become increasingly difficult for those of us who care about the necessity of closing the prison at Guantánamo Bay to keep this burning injustice in the public eye. 

Journalists who care have tried hard to find ways to not let Guantánamo be forgotten, and one of those journalists is Karen Greenberg, director of the Center on National Security at Fordham Law, and the author of The Least Worst Place: Guantánamo’s First 100 Days, published in 2010.

Karen and I first got to know each other in the George W. Bush years, when my book The Guantánamo Files was published. She screened ‘Outside the Law: Stories from Guantánamo,’ the documentary film I co-directed, in New York in 2009, and has been a panelist on several occasions in the panel discussions Tom Wilner and I organize every January, on the anniversary of the opening of Guantánamo, at the New America think-tank in Washington, D.C. Read the rest of this entry »

It’s Ten Years Since the Supreme Court Granted Habeas Corpus Rights to the Guantánamo Prisoners, a Legal Triumph Until a Lower Court Took Them Away

Protestors with Witness Against Torture outside the Supreme Court calling for the closure of Guantanamo on Jan. 11, 2017, the 15th anniversary of the prison's opening (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.




 

Exactly ten years ago, I was briefly working for the human rights organization Reprieve, when a wonderful ruling came out of the US Supreme Court. In Boumediene v. Bush, the Court held that efforts by Congress to quash the habeas corpus rights that they had granted the prisoners in 2004, in Rasul v. Bush, had been unconstitutional, and asserted that the prisoners had constitutionally guaranteed habeas corpus rights.

We were overjoyed with the result, and for good reason. Although the Rasul ruling had allowed lawyers into Guantánamo, a derisory response by the Bush administration — the Combatant Status Review Tribunals, administrative military reviews designed to rubber-stamp the prisoners’ blanket designation, on capture, as “enemy combatants” — and Congress’s obstructions, via the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, had prevented habeas cases from proceeding to the courts, as I explained at the time in my article, The Supreme Court’s Guantánamo ruling: what does it mean?

In the ruling, Justice Anthony Kennedy, delivering the Court’s majority opinion, ruled that the “procedures for review of the detainees’ status” in the DTA “are not an adequate and effective substitute for habeas corpus,” and that therefore the habeas-stripping component of the MCA “operates as an unconstitutional suspension of the writ.” Read the rest of this entry »

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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