In Guantánamo Habeas Corpus Case, Lawyers Insist That Trump’s Stated Intention of Not Releasing Any Prisoners Renders Their Imprisonment “Perpetual” — and Illegal

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On January 11, the 16th anniversary of the opening of the prison at Guantánamo Bay, lawyers for eleven of the 41 prisoners still held submitted a habeas corpus petition to the District Court in Washington, D.C., arguing, as a press release by the New York-based Center for Constitutional Rights put it, that “[Donald] 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’s press release also stated that the lawyers’ 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.” The lawyers added 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.”

In an article marking the submission of the habeas petition, I explained that the eleven men whose lawyers submitted the petition 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.”

A week later, the judge in the case, 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, by February 16, what its policy is regarding the two review processes established under President Obama, the Guantánamo Review Task Force, which, in 2009, approved the release of 156 prisoners, all but three of whom were released under Obama, and the Periodic Review Boards, which, between 2014 and 2016, approved the release of 36 prisoners, all but two of them were released before Obama left office.

Judge Kollar-Kotelly specifically asked “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.” She also ordered the government to “include a short summary as to the detainment status of each Petitioner.”

On time, surprisingly, the government responded, arguing that, “As the Supreme Court has acknowledged [in Hamdi v. Rumsfeld in 2004], the laws of war permit the detention of enemy combatants for the duration of a conflict,” (and specifically, in a post-9/11 context, via the Authorization for Use of Military Force, passed by the Congress the week after the 9/11 attacks). The government’s lawyers also claimed that, as a result, “Petitioners 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.”

Unfortunately, the government felt no pressure to justify the very basis for holding prisoners, which was catastrophically chaotic. Competent tribunals under Article 5 of the Geneva Conventions, held close to the time and place of capture for prisoners who claim that they are civilians and who are not readily identifiable as a combatants, were deliberately shunned by the Bush administration, which, instead, decided that everyone who ended up in US custody was accurately detained and could be held without any rights whatsoever. This stupidly arrogant assertion of US might and infallibility ignored the fact that the majority of prisoners who ended up in US custody were not captured on a battlefield, and, in most cases, were not even captured by US forces, but by their Afghan or Pakistani allies, at a time when substantial bounty payments were being offered for alleged al-Qaeda or Taliban prisoners,

The Bush administration’s position also conveniently ignored the fact that, as a result of Guantánamo being largely filled with people about whom the US authorities knew almost nothing, most of what passes for “evidence” at Guantánamo is only what US forces themselves tortured or otherwise coerced out of the prisoners themselves, who were prevailed upon — through violence, the threat of violence, or through being bribed with all manner of “comfort items” — to make statements incriminating themselves and their fellow prisoners in all manner of terrorism-related or military-related activities that, to a large extent, never actually took place.

So on the one hand, the US authorities have, for 16 years, often had no idea who they are holding, or why, or what they are supposed to have done, and yet, on the other hand, 16 years later, Justice Department lawyers who, in some cases, have spent the whole of that time defending Guantánamo in a disgraceful and unacceptable manner — including resisting every effort by the prisoners to seek fair and balanced evaluations of the justification of their imprisonment via the habeas corpus petitions that were ruled on between 2008-2011, until politically motivated judges in the court of appeals finally succeeded in gutting habeas corpus of all meaning — are now devoting they energies to defending law of war detention as though the circumstances of capture mean nothing.

The Justice Department lawyers also made a point of defending the government’s claimed right to have prisoners approved for release, but then not release them, as though that is somehow morally or ethically acceptable, when it is clearly no such thing, and ended up attempting to justify the prisoners’ ongoing imprisonment as being “indeterminate” rather than indefinite.”

As they put it, “as long as the relevant conflict continues — and it does [] — no constitutional issue arises as to Petitioners’ continued detention. That the duration of that detention may be currently indeterminate — because the end of hostilities cannot be predicted — does not render the detention ‘perpetual’ or unconstitutionally ‘indefinite.’”

On March 9, the prisoners’ lawyers responded, and I’m posting below the whole of their preliminary statement, which sums up well their objections to the government’s position:

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.

First, despite its platitudes and narrow caveats, 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. The policy, clear from Trump’s campaign commitments and his thorough-going hatred and suspicion of Muslims, has only been reconfirmed since Petitioners’ filing through a February 2018 Executive Order [see here] and the President’s bellicose pronouncements during his State of the Union address. The Periodic Review Board process (part of which was revived only after the filing of Petitioners’ motion) is an exercise in futility; it is feckless and corrupted by command influence and, in any event, as the cleared Petitioners prove, meaningless in light of the President’s policy against transfers.

Second, there is no legal support for perpetual detention of this sort. The government repeats as mantra the proposition that detention may continue as long as active hostilities are ongoing. That maxim, however, cannot so readily dispose of the actual question presented or the human lives at stake. The government’s self-serving conception of “active hostilities” — depending (as it says it does) either upon the actual surrender of all Al Qaeda forces or the decimation of various Al Qaeda splinter groups across the world — will likely never cease. Thus, under the government’s own standards, it can and may well detain Petitioners in perpetuity — in violation of the Constitution and properly construed detention authority under the AUMF.

Perpetual non-criminal detention violates due process. The Due Process Clause applies to Guantánamo because identifying limits on the duration of detention would not be “improper or anomalous” under governing Supreme Court precedent — a proposition the government does not contest — and should have as much force as do the Suspension and Ex Post Facto Clauses, which the government concedes do apply to Guantánamo. Nor is such a due process challenge to duration foreclosed by a proper reading of the actual holdings of the Circuit’s cases the government relies upon. Similarly, the AUMF — on its own terms and read, as it must be, to avoid conflict with the constitutional limitations on detention — cannot permit the perpetual detention Petitioners’ face. The Supreme Court in Hamdi v. Rumsfeld, authorized only limited military detention, cautioned that any such authorization may not extend indefinitely, and expressly prohibited perpetual detention.

Petitioners have been detained without charge at Guantánamo for between 12 and 16 years — longer than the duration of any prior military conflict in US history; and, as a consequence of Trump’s policy, may not have a chance at release for up to seven years. The experiment in indefinite detention at Guantánamo has run its course. The judicial branch cannot cede the legality of these continuing and perpetual detentions to this executive branch. The Court should grant the writ.

So now it’s back to Judge Kollar-Kotelly to make a ruling — and I very much hope that she takes on board the prisoners’ arguments about the meaning of imprisonment under a president who appears to be committed to releasing no one, under any circumstances, and also that she will get to hear of my reminder that the very basis of what passes for evidence at Guantánamo, to justify detaining men in the first place, is and always has been catastrophically flawed.

It is of relevance, I think, that Judge Kollar-Kotelly’s colleague, Judge Gladys Kessler, recognized the shockingly arbitrary and corrupted nature of what passes for ”evidence” at Guantánamo almost nine years ago, in May 2009, in assessing the habeas corpus petition of a Yemeni prisoner, Alla Ali Bin Ali Ahmed, who was released in 2009, and whose case I wrote about in two articles entitled, Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses and Guantánamo: A Prison Built On Lies.

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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