Good News: Court Orders Trump Administration to Explain Its Position on Guantánamo After A Year of Shocking Inaction

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Two and a half weeks ago, on the 16th anniversary of the opening of the prison at Guantánamo Bay, lawyers for eleven of the 41 men still held at Guantánamo, from the Center for Constitutional Rights, Reprieve, and other legal firms, filed a habeas corpus lawsuit with the District Court in Washington, D.C., in which, as I explained in an article at the time, drawing on a CCR press release:

[I]t “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.”

On January 18, 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 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”:

(i) The Government shall include a brief summary of its policy with respect to the Guantánamo Review Task Force (“Task Force”) and the Periodic Review Boards (“PRB”), including 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.

(ii) The Government also shall include a short summary as to the detainment status of each Petitioner.

These demands — requiring the government to explain what its position is with regard to the high-level government review processes established under President Obama (and particularly the parole-type Periodic Review Board process that led to 36 men being freed in Obama’s last few years in office), whether it intends to honor previous decisions to release five prisoners, and to meaningfully review the cases of the 26 other men who are not already charged in the military commission trial system, and also calling on it to provide meaningful information on each of the 41 men still held — is a huge step forward after the deliberate inaction of Trump’s first year.

As Shelby Sullivan-Bennis of Reprieve, who represents prisoners including Abdul Latif Nasser, one of the five men approved for release but still held, stated in a tweet after the ruling was issued, “Well, today the court ordered Trump to articulate a damn policy on Guantánamo & explain why my clients who’ve never been charged w[ith] a crime AND were unanimously cleared for release (including the Moroccan author of this birthday card [see left]) remain locked in that black hole. A good day.”

In the last year, in contrast to Judge Kollar-Kotelly’s demands, Trump’s position on Guantánamo has involved him sporadically continuing to make provocative but groundless comments about the prison and the men held there. It was also leaked that he intended to keep Guantánamo open, and that he wanted to send new prisoners there. This latter threat has, thankfully, not come to pass, almost certainly because Guantánamo has no actual purpose beyond warehousing people in a despicable kind of lawless limbo, or attempting to prosecute them in a hopelessly broken trial system, and the federal courts actually have a solid track record when it comes to prosecuting terrorists.

On the former point, keeping Guantánamo open actually requires no effort on the part of the president, because there is no actual mechanism for closing it, and lawmakers have passed legislation preventing any prisoner from being brought to the US mainland for any reason, thereby preventing its closure. Nevertheless, obviously obsessed that President Obama had issued an executive order on his second day in office in January 2009, establishing that the prison should be closed, Donald Trump is now, according to a State Department leak reported by Politico, planning to issue an executive order formally rescinding the bulk of Obama’s executive order, as I discussed in an article entitled, Leak Reveals How, In Counter-Productive, Backwards Move, Donald Trump Plans  to Issue New Executive Order Keeping Guantánamo Open.

According to Politico, Trump may announce his executive order as early as tomorrow’s State of the Union address, making Judge Kollar-Kotelly’s order even more significant than it already was.

As CCR explained in a press release after the ruling:

However the Justice Department may respond in court, the administration’s actions and stated intentions have already spoken loudly. President Trump has declared that no detainee should be transferred from the prison. Accordingly, there has been no forward movement on Guantánamo for a full year. Men approved for transfer are still languishing with no prospect of release. Offices of special envoys tasked with negotiating transfers with foreign governments are officially or effectively defunct [see here]. And the Periodic Review Boards, while continuing in form, are devoid of real substance [see here].

As we’ve said before, context also matters. The President has demonstrated, through vulgar words and deeds, his animus toward Muslims and non-white foreigners. With respect to suspects of terrorism in particular, he has gone so far as to call for overt torture. It is plain to us that Trump has no intention of moving any detainee out of Guantánamo, and won’t, without the intervention of the court. The only acceptable position at this point is for the prison to close and for the men who remain detained to be charged or released.

For now, few further words are needed. If Trump is determined to proceed with his despicable proposal to officially keep Guantánamo open, it is absolutely imperative that he faces a serious obstacle where it counts the most — in the courts that, lest we forget, are supposed to provide a check on unfettered and/or irresponsible executive power.

Note: For further information, see Scott Roehm’s Just Security article, which includes links to three amicus briefs — one filed by the Center for Victims of Torture, one filed “on behalf of a collection of Muslim, faith-based, and civil rights community organizations,” which “puts the president’s approach to Guantánamo in the broader context of his demonstrated anti-Muslim animus,” and one “filed on behalf of constitutional law and criminal procedure experts,” which “dives deeply into why the Constitution prohibits continued indefinite detention at Guantánamo.”

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 the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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