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

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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.”

As CCR explained, “Azmy told the court that, 16 years into Guantánamo’s operation, any legitimate rationale for detaining these men has expired. Indeed, two of the men who joined the challenge are cleared for transfer by the government; despite that, they, like other detainees, face the prospect of life in prison. Others are aging and in ill health. Last month, the prison’s commanders told reporters that they were planning for 25-35 more years of detention operations, including construction of a prison hospice wing.”

Sharqawi Al Hajj, a 43 year-old Yemeni prisoner represented by CCR, who joined the motion and has been detained without charge since 2002, including being held and tortured in CIA “black sites,” said, “The government says my detention is legal because of the indefinite war against terrorism. When terrorism ends, the war will end. So, never. Even though I expected such a response, I was still shocked at the idea that I am such a threat that the government wants to keep me here at a cost of millions every year.”

In an important additional comment, al-Hajj said, “Let’s even assume I did wrong 17 years ago, but that I want to change and have changed. Where is there room for that? The government doesn’t want to hear about it.” This is indeed shockingly true. While prisoners of war can be expected to be released when a war ends, and while anyone charged with a crime can expect a trial, and if convicted, a sentence that will end with them having paid their debt to society, the “forever prisoners” of Guantánamo are, to all intents and purposes, regarded as perpetually dangerous, with no way of them being able to demonstrate otherwise.

CCR also noted that al-Hajj, “who is sick and on hunger strike,” continued, “I feel like I am dead but still breathing. Seventeen years have gone from my life. I’ve been deprived of my family. Every day I have a new ailment. If I think about it too much I’ll lose my mind. I’m asking the judge to protect justice. I don’t present a threat. Show me how I can convince you that I don’t pose a threat to anybody. Just show me the way and I will follow it.”

In a separate press release, Reprieve noted how “[t]he Trump administration’s lawyers claim their detention is not indefinite – which would violate the US Constitution as well as international law — but “indeterminate,” a semantic distinction that lawyers for the men challenged in court.”

Shockingly, as Reprieve also reported, at one point in the hearing Judge Hogan “asked US Justice Department attorney Ronald Wiltsie whether the Government’s legal justification for detaining the men, based on the Authorization for the Use of Military Force, would allow them to be imprisoned for 116 years — the duration of the Hundred Years’ War between England and France.”

“Yes,” Wiltsie replied, adding, “We are still engaged with the same battle foes in the same battle space.”

As Reprieve added, “In a war without end, the men are perpetually detained.”

Reprieve represents four of the petitioners, including two men, Abdullatif Nasser, a Moroccan, and Tawfiq al-Bihani (aka Towfiq al Bihani), a Yemeni, who have been unanimously approved for release by high-level government review processes involving the defense and security agencies, but who “remain imprisoned, apparently with no hope of being released.”

Shelby Sullivan-Bennis, the legal counsel for Nasser and al-Bihani (and Reprieve’s five other Guantánamo clients), said, “Keeping these men behind bars forever, when the government’s own investigators have determined that they committed no crime and pose no threat, is a shocking violation of the USA’s founding principles.”

She added, “Guantánamo Bay is a global symbol of injustice, and a recruitment tool for America’s enemies. It has made us less safe, at huge expense to taxpayers, while doing lasting damage to the USA’s reputation as a beacon for fairness and liberty.”

Another of Reprieve’s clients, Abdulmalik Bajabu, a Kenyan, and one of the last prisoners to arrive at Guantánamo, in 2007, is another of the petitioners. Reprieve noted that, “In his last phone call with Shelby Sullivan-Bennis, he expressed hope that he will eventually be released.”

As he said, “In Guantánamo there are not any rights. Might is right. The administration has power and you can do nothing. But people in America are good people — they don’t know what is going on in GTMO. I don’t lose heart, no matter what will come. I don’t know if I’ll wake up tomorrow, so I try to live for each day. We are all still praying but to be free is to be free in your heart. After all, people out there who have cancer suffer too, but try to make the most of their lives. Still, if the judge truly took an oath to do what is right then he will do what is right.”

Reporting on the case for the Washington Post, Missy Ryan noted that attorneys for the men “said the Trump administration had violated prisoners’ rights because it did not intend to try them or resettle them overseas,” and argued that, “[w]ithout court intervention … the government would allow the prisoners to die in detention without having a trial or being reunited with their families.”

Ryan noted that Baher Azmy said in court, “There have to be some limits.” She added that “[m]uch of the hearing revolved around the government’s assertion that it could continue to hold the detainees until hostilities against the United States cease, no matter how long that takes,” as mentioned above, also noting that the DoJ’s Ronald Wiltsie had also claimed that the authorities “had a responsibility to detain suspects who could pose a future threat, even if it was not clear they would actually take any action against the United States.”

This was what prompted the 100 Years War analogy referred to above, with Wiltsie saying, as Ryan reported, “We could hold them for 100 years if the conflict lasted 100 years. You cannot tell when hostilities end until they have ended.”

In the Miami Herald, Carol Rosenberg added that Judge Hogan “openly questioned whether he could reinterpret higher court rulings on what laws apply to non-citizens held in offshore military detention,” but “agreed with the prisoners’ lawyers that Guantánamo captives have been held as long as some convicted criminals have served ‘very serious sentences’ in the United States.” He also “framed the inmates’ argument to say that they were trapped in a ‘no-man’s land’ or a ‘Catch-22.’”

For the Post, meanwhile, Missy Ryan also noted that Baher Azmy said that the government had “distorted” the Authorization for Military Force, the law passed in the days after 9/11, which authorized the president to pursue and imprison those he regarded as being connected to al-Qaeda and/or the Taliban “by using it as a basis for indefinite imprisonment.” In the Post’s words, “He said insurgent wars, waged against small, clandestine and evolving bands of militants, could go on forever. But laws governing wars were devised with conflicts between states in mind.”

For Wiltsie, however, “the US military was still ‘engaged against the compatriots’ of the men held at Guantánamo” — a reference to the US’s ongoing presence in Afghanistan, and its continued military engagements with the Taliban and other militant groups. As the Post put it, “the Pentagon says that al-Qaeda has been largely defeated in Central and South Asia,” but “officials believe that a small number of extremist holdouts remain in strongholds in Afghanistan and Pakistan and retain the ambition to strike the West.” However, it should be noted that this connection must really be regarded as quite shockingly tenuous, given how the Taliban of today bears little resemblance to that of 2001, and other militant groups almost certainly have no connection to anyone held at Guantánamo, and nor should it be taken at face value that the US authorities believe that there are still players who “retain the ambition to strike the West.”

The Post also noted that discussions in court also focused on the significance of Donald Trump’s position regarding releases from the prison, with attorneys for the men stating that “the government’s apparent refusal to resume resettlements is an indication they intend to allow the men to die in prison,” and Wiltsie claiming, in response, that “the administration had not shut the door to future transfers,” adding that, although the Trump administration had shut the office of the envoy for Guantánamo closure, which President Obama had established, and which had been extremely important in arranging prisoner releases and in monitoring prisoners after their release, “prisoner transfers could resume at a later date.”

At this point, Hogan intervened to challenge the government’s assertion, pointing out that, as the Post put it, “despite Trump’s 2018 executive order asking the Pentagon to develop a new transfer policy, the president had clearly stated his opposition to that idea in previous statements, in what Hogan characterized as his ‘Twitter position.’”

In conclusion, the Post noted that Judge Hogan “expressed sympathy with the detainees’ long imprisonment, but he questioned whether it was his court’s place to overturn the rulings of higher courts.” He also “did not say how he would rule.”

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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