Fighting Guantánamo in the Courts Under President Biden

Three of the Guantánamo prisoners who are currently seeking their release from the prison through the US courts. From L to R: Khalid Qassim and Abdulsalam al-Hela, both Yemenis, and Asadullah Haroon Gul, an Afghan.

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I wrote the following article (as “The Ongoing Legal Struggles to Secure Justice for the Guantánamo Prisoners Under President Biden”) for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the nineteen unforgivably long years since the “war on terror” prison at Guantánamo Bay was first established, lawyers have worked tirelessly to challenge and overturn the Bush administration’s outrageous contention that everyone who ended up at Guantánamo was an “enemy combatant” with no rights whatsoever, who could be held indefinitely without charge or trial.

There have been victories along the way, but the sad truth is that Guantánamo’s fundamental lawlessness remains intact to this day. Since 2010, only one prisoner has been freed because of the actions of lawyers and the US courts (a Sudanese man whose mental health issues persuaded the Justice Department, in this one instance only, not to challenge his habeas corpus petition), and, as the four years of Donald Trump’s presidency showed, if the president doesn’t want anyone released from Guantánamo, no legal avenue exists to compel him to do otherwise.

The lawyers’ great legal victories for the Guantánamo prisoners came in the Supreme Court in what now seems to be the distant, long-lost past. In June 2004, in Rasul v. Bush, the Supreme Court ruled that the prisoners had habeas corpus rights; in other words, the right to have the evidence against them objectively assessed by a judge. That ruling allowed lawyers into the prison to begin to represent the men held, breaking the veil of secrecy that had allowed abusive conditions to thrive, but Congress then intervened to block the habeas legislation, and it was not until June 2008 that the Supreme Court, revisiting Guantánamo, ruled in Boumediene v. Bush that Congress had acted unconstitutionally, and affirmed that the prisoners had constitutionally guaranteed habeas rights.

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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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