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

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

 

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.

However, the Periodic Review Boards are a purely administrative process, which have no legal weight, and, as has become apparent over the last two years, since President Biden took office, although the administration claims to respect the decisions taken by the PRBs (not just in Qassim’s case, but in the cases of 16 other men approved for release), the reality is that, while these men continue to languish in an administrative limbo, three other men who managed to persuade judges to weigh in on their cases have already been freed.

Mohammed al-Qahtani, a severely mentally ill Saudi, was repatriated in March last year, having persuaded a judge two years previously that, as I described it at the time of his release, “a valid case could be made that he should be sent back to Saudi Arabia because the authorities at Guantánamo were unable to adequately deal with his illness.”

In June last year, another prisoner, Asadullah Haroon Gul, an Afghan, was repatriated after securing the first habeas corpus victory by a Guantánamo prisoner in over ten years. Gul had allegedly worked with Hezb-e-Islami Gulbuddin (HIG), a militia led by Gulbuddin Hekmatyar, who had aligned himself with al-Qaeda after the U.S.-led invasion of Afghanistan in October 2001, but had, as I described it on Gul’s release, “reached a peace agreement with the Afghan government in 2016, meaning that the U.S. no longer had any justification for holding anyone affiliated with HIG.”

The third case involves Majid Khan, a Pakistani who had become embroiled in al-Qaeda as a vulnerable young man, and had couriered money used for a terrorist attack. Khan had been thoroughly remorseful about his actions, but had been held and tortured in CIA “black sites” for three and a half years before his transfer to Guantánamo in September 2006, where he eventually became a cooperating witness. In return for his remorse and his cooperation, he received a sentence capped at 19 years from the date of his initial capture, which came to an end on March 1 last year. It took another eleven months for the government to find a third country that was prepared to offer him a new home (because it was unsafe for him to be sent back to Pakistan), but eventually Belize was persuaded to accept him, and he was resettled there in February this year.

Because Khan had been given a sentence, and that sentence had come to an end, the government was legally obliged to release him, and in fact, after 100 days had elapsed since his sentence ended, he had been able to ask a court to order his release.

As I explained when Khan was freed, it was impossible not to contrast his situation with that of the men approved for release but still held, because, until they are freed, “the message the U.S. government is sending to [them], and to the world, is that it is easier to resettle from Guantánamo someone convicted of terrorism but demonstrably remorseful than it is to resettle someone never charged with a crime at all.”

The court submission in Khalid Qassim’s case, October 27, 2022

And so to Khalid Qassim, whose lawyers are trying to break through the absurd and completely lawless situation whereby men approved for release cannot ask a judge to order their release because the decisions to release them were purely administrative.

This is not the motive behind the case submitted on Qassim’s behalf; that, as it should be, is much more significant, as it strikes to the heart of the government’s unacceptable claims that it can continue to legally hold soldiers after the end of hostilities.

However, no one should forget that, in seeking to secure a judge’s order to release Qassim, his lawyers are chipping away at a wall erected around Qassim and the other men approved for release, who, as Khan’s lawyers memorably described it when they went to court on his behalf after his sentence ended, require the “discretion and grace” of the authorities to secure their own freedom — a situation which, as we are seeing with the ongoing imprisonment of Qassim and the other men approved for release, is a poor substitute for the law.

At the end of October last year, Qassim’s lawyers — the hugely respected legal scholar Anthony G. Amsterdam, University Professor Emeritus at NYU School of Law; Thomas Wilner, who was Counsel of Record to the Guantánamo prisoners in their Supreme Court cases establishing their right to habeas corpus in 2004 and 2008; and his colleague Neil Koslowe — submitted a motion, completely ignored by the mainstream media, in which they sought to demonstrate how “longstanding, fundamental and accepted principles of the law of war” do not “provide the government with the lawful authority it now claims, to continue depriving petitioner of his liberty after the armed conflict in which he was allegedly captured has ended.”

In their introductory paragraphs, Qassim’s lawyers summarized “the facts” of the case, which, as they explained, “are not in dispute.”

As they stated:

The government does not dispute that petitioner has been imprisoned by the United States Government at Guantánamo Bay since May 1 of 2002 and that he has never been accused of engaging in or providing material support for terrorism or of any other crime. It does not dispute that he is detained on the basis of the government’s claim that, more than two decades ago, he was part of or supported military forces engaged in active combat operations against United States troops in Afghanistan. It also does not dispute that those combat operations are over, that President Biden has declared an end to that “forever” war and ordered the withdrawal of all U.S. troops, and that, as of September 11 of last year, involvement by U.S. troops in active combat has ended.

The government asserts, however, that despite the withdrawal of U.S. troops and the end of active combat operations, the United States remains actively engaged in fighting Al-Qaeda and other terrorist organizations around the world through other, more targeted means, such as drone, air and missile strikes and other methods of long-distance targeted killings. Petitioner does not dispute those assertions.

The dispute arises over the consequence of those facts. The government claims that it may continue to imprison Mr. Qassim, who was originally taken into custody to prevent him from returning to an ongoing armed conflict in Afghanistan, so long as it continues to be engaged in fighting terrorists anywhere in the world. That fight of course is likely to continue long after we are gone and probably long after our children and grandchildren are gone. The government’s claim therefore is that it may deprive petitioner of his liberty forever without charge or trial, even though he has never been accused of engaging in terrorism, and even after the end of the particular hostilities he is alleged to have engaged in.

As the lawyers proceeded to explain, the government’s claimed authority for its detention policies at Guantánamo is the Authorization for Use of Military Force (AUMF), a resolution passed by Congress the week after the 9/11 attacks, which “authoriz[ed] the executive to use all ‘necessary and appropriate force’ against those responsible for the attacks.” However, as they noted, “The AUMF itself is silent on the authority to detain.”

That authority only materialized in the Supreme Court in June 2004, in Hamdi v. Rumsfeld, when, as the lawyers described it, the Court “confirmed that the executive had the authority it was seeking under the AUMF to detain individuals who it alleged were ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there.”

However, as the lawyers added, “the Court carefully defined the scope and duration of that authority.” In her controlling opinion in the case, Justice Sandra Day O’Connor  accepted that the “detention of ‘individuals who fought against the United States in Afghanistan … for the duration of the particular conflict in which they were captured is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.”

As the lawyers proceeded to explain:

The Court emphasized, however, that these detentions could only be “temporary”; their purpose was not penal but solely to prevent the individuals “from returning to the field of battle and taking up arms once again” during “the ongoing conflict.” The Court emphasized that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” It explained that U.S. detention authority over individuals like petitioner who allegedly engaged in combat operations against U.S. forces in Afghanistan existed only because “[a]ctive combat operations against Taliban fighters apparently are ongoing.” The Court therefore concluded that the government’s detentions could continue “if the record establishes that United States troops are still involved in active combat in Afghanistan.”

They added:

There is no doubt that the detention authority the government now claims goes well beyond that authorized in Hamdi. It is more than a year since all U.S. troops were withdrawn from Afghanistan, all active combat operations ended and the President declared an end to the “forever” war there. Yet, the U.S. government claims the right to continue detaining these men even after “the particular conflict in which they were [allegedly] captured” has ended and it says it has authority to continue detaining them so long as it continues to fight terrorism anywhere in the world. That, in effect, is a claim by the government that it has the right to detain these men forever.

The supporting affidavit

In a supporting affidavit, three law professors — David Glazier, Professor of Law at Loyola University; Robert K. Goldman, Professor of Law at American University Washington College of Law; and Gabor Rona, Professor of Practice Cardozo Law School, all professors of law “with specific expertise in the international law governing armed conflict” — fully endorsed Qassim’s lawyers’ position.

As they stated:

We have been asked to address the question whether long-standing, fundamental and accepted principles of the law of war provide the U.S. government with the authority to continue detaining individuals captured in combat against U.S. and allied troops in the war in Afghanistan after that war and its combat operations have ended but targeted strikes against Al-Qaeda and other terrorist groups continue. The answer to that question is no. There is no fundamental and accepted principle of international law that provides the U.S. government with that authority.

We agree with the Supreme Court’s holding in Hamdi v. Rumsfeld that preventative non-punitive detention of individuals “legitimately identified” as Taliban combatants engaged in armed conflict against the U.S. was a “fundamental incident” of warfare authorized by the international law of war. But we also agree that Justice O’Connor’s opinion for the court correctly declared that it “is a clearly established principle of the law of war that detention may last no longer than active hostilities.” For this purpose the relevant active hostilities would be considered to end with the end of active combat operations and the withdrawal of all U.S. troops. At that point all law of war detainees must be promptly released and repatriated unless they are either the subject of active criminal proceedings or serving a lawfully adjudicated penal sentence. In those cases — but only in those cases — repatriation can be delayed until the completion of the judicial process and any punishment imposed.

It would be unprecedented for the government to assert that individuals detained as participants in one conflict could continue to be held after the clear termination of active hostilities in that conflict while it continues to combat terrorism around the world. There is no foundation for that view in accepted principles of the law of war.

The hearing, December 5, 2022

As I see it, Qassim’s lawyers made a compelling and watertight case that there was no legal basis whatsoever for his ongoing imprisonment. However, to persuade the judge, Senior Judge Thomas Hogan in the D.C. District Court, they were required to repudiate counter-claims made by Justice Department lawyers, who, as they have throughout Guantánamo’s history, behave as though their very lives depend on defeating any efforts in court to challenge any aspect of the government’s claimed detention authority.

Arguing Qassim’s case, Thomas Wilner was required to fend off claims that two previous “end of war” cases — Al-Bihani v. Obama and Al-Alwi v. Trump, which had both been turned down by judges — had any relevance to Qasim’s case, which they clearly did not. These two cases were decided in 2010 and 2018, when the U.S. was still involved in active combat in Afghanistan.

More deviously, the Justice Department lawyers tried to claim that the remit of the AUMF had been extended by Section 1021 of the 2012 National Defense Authorization Act (NDAA), which affirmed “the authority for the Armed Forces of the United States to detain covered persons … pending disposition under the law of war” — and with “covered persons” being those who allegedly “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or those who were “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

In particular, the Justice Department lawyers seized on one particular description of the meaning of “disposition under the law of war” in Section 1021; namely, “Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”

As Qassim’s lawyers pointed out in their submission, however, Section 1021(d) of the 2012 NDAA “explicitly states that the provision does not ‘limit or expand the authority of the President or the scope of the Authorization for Use of Military Force,’” and, as a result, Hamdi’s “end of war” ruling regarding soldiers still stands.

In the hearing, Wilner also pointed out that Section 1032 of the 2012 NDAA, dealing with military custody for those alleged to be “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda,” and “to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners,” reinforced the distinction between soldiers and terrorists.

Nevertheless, the Justice Department lawyers sought to invoke the purported relevance of Section 1031 to Qassim’s case with reference to two other cases decided in June and July 2022 — Husayn v. Austin and Paracha v. Biden. As Wilner explained, however, in both of those cases allegations had been made of involvement in terrorism, and therefore were not relevant to Qasim’s case and its very specific focus on the impact of the end of hostilities on a soldier.

To provide some additional context, it should be noted that Husayn is Abu Zubaydah, the first victim of the CIA’s post-9/11 torture program, who has indeed been accused of involvement in terrorism, although, over the years, the government has quite spectacularly walked back from most of its claims. Paracha, meanwhile, is Saifullah Paracha, whose alleged involvement with al-Qaeda was thoroughly undermined when the case against his son, Uzair Paracha, collapsed and he was freed from a U.S. jail in March 2020. It took until May 2021 for his father to be recommended for release, but he was finally freed at the end of October last year.

I note these cases because, it seems to me, it would be worthwhile for everyone involved in defending lifelong imprisonment without charge or trial at Guantánamo to not only stop trying to defend the imprisonment of soldiers after a war has ended,  but also to read carefully the affidavit submitted in Qassim’s case by the three law professors, who, after stating that “active hostilities would be considered to end with the end of active combat operations and the withdrawal of all U.S. troops,” added, “At that point all law of war detainees must be promptly released and repatriated unless they are either the subject of active criminal proceedings or serving a lawfully adjudicated penal sentence. In those cases — but only in those cases — repatriation can be delayed until the completion of the judicial process and any punishment imposed.”

With reference to Qassim, however, Tom Wilner pointed out that, in Husayn and Paracha, the judges “never addressed whether settled law-of-war principles support the government’s claim that it may continue to detain men like petitioner [Qassim] who were allegedly captured for engaging in or supporting active combat operations against United States troops after those combat operations have ended,” bringing Justice O’Connor’s ruling in Hamdi back into sharp focus.

Judge Hogan’s “concern” about Qassim’s endless imprisonment

Although it is impossible to predict what conclusion Judge Hogan will reach in Qassim’s case, there were reassuring moments in the hearing — when, for example, he discussed Judge Mehta’s ruling granting the habeas corpus petition of Asadullah Haroon Gul, despite the Justice Department’s efforts to keep him imprisoned forever without charge or trial (and in spite of a decision by a PRB to approve his release).

As Judge Hogan described it, Judge Mehta “raised concerns” about “how long the government would keep its position where the active battles in Afghanistan have been long over,” and yet the position taken by the government in Gul’s case “suggest[ed] that the detention for Gul could last for the rest of his life, and that he [saw] concerns about that.”

Judge Hogan added, “Obviously, this Court has had concern about Qassim from the beginning.”

As he further explained, as “a simple foot soldier,” as Qassim contends he was, “he can’t be held forever on the allegation that he is some kind of a terrorist.”

As he also explained, “You can’t just take this young man who came out of a village in another country who apparently traveled to Afghanistan and got caught in the battle in Afghanistan and had not gone abroad, had not planned any type of terrorist activity anywhere, or anything else,” adding that there had even been “a question of whether he carried a weapon or not.”

Judge Hogan also mentioned Qassim’s status as a prisoner finally approved for release by a PRB, asking the Justice Department lawyer, Julia Heiman, “What obligation, if any, under the law and the detention authority you have cited, does the government have to find a place for these cleared individuals, like Mr. Qassim, whose background is, I think, as slight a connection with terrorism as you can have? I mean, he is not a planner, organizer — he is none of that, in the factual predicate there. So what happens eventually?”

He added, “I have been concerned for several years that he wasn’t cleared for a long time and now, under this administration at least, they have been clearing some people, but they haven’t moved anybody out,” and asked whether a State Department official had been assigned to the task, as had been the case under President Obama.

In response, after consulting with her colleagues, Julia Heiman replied that “Ambassador Kaidanow now has been appointed as responsible for matters pertaining to the transfer of detainees from Guantánamo” — although it was unclear how much or how little she knew about Ambassador Kaidanow’s appointment last summer, or how much or how little the Justice Department cares that they continue to defend the detention of prisoners even when they have been approved for release through the PRB process.

I can’t help but wonder whether Judge Hogan was quietly highlighting the lack of joined-up thinking that has plagued Guantánamo since the Obama years, when the Justice Department persistently — as now in Qassim’s case — sought to defend the ongoing imprisonment of men who had been approved for release though administrative review processes.

In conclusion, Tom Wilner highlighted why a court order in Qassim’s case was so necessary.

As he explained:

First, I have met with the State Department’s office in charge of relocation. They are very nice people, and I will say that they have a very difficult job. [F]irst of all, it’s very hard to get countries to accept people because we won’t accept them. Every country says: “Why won’t you take any? Why do we need to take your people?,” which is really something. Second of all … even when somebody is cleared, you don’t get full support from the government agencies here. Some will still raise questions: “Why are we doing this?” Security agencies. Third, it’s particularly difficult now because there is a flood of refugees around the world seeking asylum in these countries … The fact is that, without a court order, these people are nothing but a slab of meat subject to whatever the government does to them, whenever they allow us to meet with them. It’s really disgusting.

He concluded, “Your Honor, let me say, I think the government’s claim is really obfuscation here.”

I hope Judge Hogan fully understands the historic significance of the case before him. Sadly, as can be seen by the mainstream media’s failure to even pay attention to it, the dangerous betrayal of the law at Guantánamo is not of much interest to Americans today, but a decision to approve Khalid Qassim for release would be remembered as a high point in the legal landscape of Guantánamo that has had too few high points since the prison opened over 21 years ago.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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 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 you can watch it online here, via the production company Spectacle, for £2.50).

In 2017, Andy became very involved in housing issues. He is the narrator of the 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 2017 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. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the struggle for housing justice — and against environmental destruction — continues.

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, The Complete Guantánamo Files, 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.