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


Judge Colleen Kollar-Kotelly and a photo of the prison at Guantanamo Bay on the day of its opening, Jan. 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.


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.

The birthday card that Abdul Latif Nasser, sent to his lawyer, Shelby Sullivan-Bennis. Nasser is one of five men still held who were approved for release before Donald Trump took office last January.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).

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, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see 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.

9 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at last week’s positive response by District Judge Colleen Kollar-Kotelly to the habeas corpus petition filed by lawyers for eleven Guantanamo prisoners on Jan. 11, the 16th anniversary of the opening of the prison. The lawyers argue that Donald Trump’s proclamation that no one should released from Guantanamo means that the men still held are subjected to arbitrary and unlawful detention, and they surely have a point. The judge gave the government until Feb. 16 to respond, and the importance of this case has only increased in recent days with the leaked news that Trump intends to issue an executive order formally keeping Guantanamo open, which may happen as early as tomorrow, in connection with his State of the Union address.

  2. Andy Worthington says...

    Many thanks to the Center for Constitutional Rights for their work on this, and to Reprieve and Shelby Sullivan-Bennis. I’m really hoping it’s of interest to those concerned with the closure of Guantanamo. The order by Judge Kollar-Kotelly ordering the Trump administration to justify its ongoing detentions and to explain what processes it has in place is a significant obstacle to Donald Trump’s intention to issue an executive order imminently that officially keeps Guantanamo open. Please share it if you grasp its significance. There’s been very little legal hope for the Guantanamo prisoners, it must be said, since ideologically malignant appeals court judges shut down the habeas corpus process over six years ago.

  3. Tom says...

    This judge says to justify keeping it open. But keep in mind we’re talking about the unlimited money and power of the Dept. of Justice. If any lower level judge says to finally close it, the DOJ attorneys will file emergency appeals all the way to the Supreme Court if necessary. That’s their strategy. Literally grind the opposition down till they can’t afford to fight any further. Congress always gives Trump more money than he asks for in his defense budget. Why? Because they’re scared of being labeled as “weak” on terrorism.

  4. Andy Worthington says...

    Good to hear from you, Tom. You’re absolutely right to mention the Justice Department lawyers. The story of their commitment to keeping Guantanamo open is really quite extraordinary, and most people don’t know abut it. Some of the officials involved in challenging every effort to get anyone out of Guantanamo have been there since the Bush administration, maintaining a continuity of dedication to Guantanamo’s original lawlessness that is now, seamlessly, on its third president. And yes, they will fight. However, I think, as in the golden years of 2008-2010, when 32 prisoners had their release ordered by judges (before the appeals court cynically gutted habeas corpus of all meaning for the prisoners), that we might have reached a tipping point, and that the courts may well decide that Trump is now presiding over a system in which meaningful review no longer exists, and so men are arbitrarily detained forever.
    The history of Guantanamo and habeas, for anyone interested, is here:

  5. Anna says...

    That judge’s name rings a bell, I suppose she has made earlier positive rulings?

    In the meantime Israel’s torture of Palestinian prisoners as well as their loopholes in human rights anti-torture legislation reads as a US GWOT manual:

  6. Andy Worthington says...

    Yes, it was so long ago, but she delivered a number of positive habeas rulings back in 2009, Anna. See, for example,
    There are other links on my habeas page here:
    Rather reeling tonight from the dreadful news about Trump’s executive order keeping Guantanamo open. More to follow.

  7. Anna says...

    I know how you feel. One step forward three backwards …
    My only hope used to be the realisation that even communism – with its cells at every level of society and therefore seemingly impossible to uproot – eventually and actually quite quickly, imploded.
    And so will this mad regime, but the way things are going, how many more innocent victims will it make before it goes down?

  8. Andy Worthington says...

    Well, who knows, Anna, perhaps the fall of communism is instructive regarding the fall of this particularly horrible form of capitalism – both the turbo-charged military-industrial complex that has mutated so horribly from even Eisenhower’s worst fears, and the wildly criminal international banking scam that impoverishes us all. We need some way out before we’re all bled dry, and some sort of feudalism makes a comeback.

  9. Guantánamo, Torture and the Trump Agenda by Andy Worthington – Dandelion Salad says...

    […] being engaged in arbitrary detention. In response, District Judge Colleen Kollar-Kotelly recently set a deadline of February 16 for the government to […]

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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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