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

Guantánamo prisoner Khalid Qassim, and Senior Judge Thomas Hogan, of the District Court in Washington, D.C., who is responsible for delivering a ruling in a case brought by Qassim, whose lawyers are seeking to have Judge Hogan order his release, on the basis that he was nothing more than a foot soldier in Afghanistan at the time of his capture over 21 years ago, and that, as such, the U.S. government can no longer claim any right to hold him, after the complete withdrawal of U.S. troops from Afghanistan in August 2021.

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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.

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Emergency Surgery on Iraqi at Guantánamo Reveals Cruelty of Congressional Ban on Transfers to US Mainland For Urgent Medical Care

Abd al-Hadi al-Iraqi, photographed at Guantánamo, in recent years, by representatives of the International Committee of the Red Cross.

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I wrote the following article 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.

Thanks to Carol Rosenberg of the New York Times for reporting on the latest news from Guantánamo about the troubling consequences of a Congressional ban on prisoners being taken to the US mainland for any reason — even for complex surgical procedures that are difficult to undertake at the remote naval base.

The ban has been in place since the early years of the Obama presidency, when it was cynically introduced by Republican lawmakers, and has been renewed every year in the annual National Defense Authorization Act (NDAA), even though, as the prisoners grow older, some of them have increasingly challenging medical issues that are difficult to resolve at the prison, where medical teams often lack equipment and personnel found readily on the mainland.

As Rosenberg explained, “The base typically sends US service members and other residents to the United States for complex care,” while shamefully denying that same level of care to prisoners, who are subject to “the constraints of so-called expeditionary medicine — the practice of mobilizing specialists and equipment to Guantánamo’s small Navy hospital specifically for the prison population.”

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69 Senators and Representatives Urge Congress to Lift Restrictions on Transferring Guantánamo Prisoners to the US Mainland

Campaigners calling for the closure of the prison at Guantánamo Bay walk past Congress on January 11, 2012, the 10th anniversary of the opening of the prison.

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In the long and shameful 20-year history of the prison at Guantánamo Bay, obstacles to the prison’s closure — and to the conditions in which prisoners are held — have been raised persistently, since 2010, after President Obama lost control of Congress in the mid-term elections, by Republican lawmakers, in the annual National Defense Authorization Act (NDAA). This year, as in previous years, concerned Democrats are hoping to overturn these provisions, and below I’m posting a letter they wrote recently to the House and Senate Armed Services Committees, but before I get to that it’s worthwhile looking back at the long history of these Congressional obstacles.

In December 2010, when Congress passed the NDAA for 2011, it included, for the first time, three provisions regarding Guantánamo that represented an unacceptable intrusion on the president’s authority: firstly, a ban on the use of funds to bring any Guantánamo prisoners to the US mainland for any reasons, even to face trials; secondly, a ban on the use of funds to purchase or construct any facility on the US mainland for housing prisoners held, at the time, at Guantánamo; and, thirdly, a requirement that, before any prisoner is released, the defense secretary must sign off on the safety of doing so.

The first of these provisions was specifically aimed at derailing the Obama administration’s proposals to try Khalid Shiekh Mohammed (KSM) and the other men accused of involvement in the 9/11 attacks on the US mainland in federal court (and, just to make it clear, it mentioned KSM by name), while the second was designed to prevent the closure of Guantánamo by derailing the administration’s efforts to buy the empty Thomson Correctional Center in Illinois to transfer men from Guantánamo so that the prison could be closed. The third provision, meanwhile, was meant to make the release of prisoners unpalatable, as any post-release problems would become the responsibility of the defense secretary.

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Sen. Dick Durbin Files Amendment to National Defense Authorization Act (NDAA) Calling for the Closure of Guantánamo

Sen. Dick Durbin calling for the closure of Guantánamo in the Senate on Nov. 30, 2021, and campaigners for the closure of Guantánamo outside the Capitol on January 11, 2012, the 10th anniversary of the prison’s opening.

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I wrote the following article 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.

On Tuesday (November 30), Sen. Dick Durbin (D-IL), the US Senate Majority Whip, and the Chair of the Senate Judiciary Committee, spoke in the Senate “about the importance of closing the Guantánamo Bay detention facility and announced he had filed an amendment to the National Defense Authorization Act (NDAA) to close the facility once and for all”, as he explained on his website. Sen. Durbin has a long history of opposing the existence of the prison at Guantánamo Bay, and in April was the lead signatory of a letter to President Biden urging him to close the prison, which was also signed by 23 other Democratic Senators (a House version, in August, was signed by 75 Democratic members of the House of Representatives). In addition, in July, Sen. Durbin wrote to Attorney General Merrick Garland, urging him to bring to an end the Justice Department’s persistent efforts “to rationalize indefinite detention at Guantánamo.”

The annual NDAA has cynically prevented the use of government funds to close the prison — as well as the transfer of prisoners to the US mainland for any reason — since the Obama presidency, and while the transfer provisions have been dropped in the House’s version of the NDAA this year, they have not been dropped by the Senate. House and Senate representatives are meeting soon to agree a final version of next year’s Act, and you can write to them here to urge them to drop the transfer prohibition, but Sen. Durbin’s amendment obviously goes much further.

Sen. Durbin began his speech by honoring “the life and legacy of US Army Major Ian Fishback, who spoke out against America’s inhumane treatment of detainees after 9/11,” and who, sadly, passed away last month at the age of 42. He was, as Sen. Durbin explained, “integral in rallying support for the torture amendment that Durbin led with the late Senator John McCain” in 2005, “which explicitly banned inhumane treatment of any prisoner being held by the US government — on American soil, or abroad.”

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Elizabeth Warren and 14 Other Senators Ask Pentagon About Coronavirus Protections at Guantánamo

Six of the 15 Senators who have written to defense secretary Mark Esper to ask what protections are being provided to prisoners and US personnel at Guantánamo in response to the coronavirus crisis. Top row, L to R: Elizabeth Warren, Bernie Sanders, Dianne Feinstein. Bottom row, L to R: Dick Durbin, Patrick Leahy, Cory Booker.

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I wrote the following article 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.

The prisoners at Guantánamo Bay — held, for the most part, without charge or trial for over 18 years now — have rarely had the support they should have received from the various branches of the U.S. government — the executive branch, Congress and the judiciary — considering how outrageous it is for prisoners of the U.S. to be held in such fundamentally unjust conditions.

Since Donald Trump became president, of course, any pretence of even caring about this situation has been jettisoned. Trump loves Guantánamo, and is happy for the 40 men still held to be imprisoned until they die, and he hasn’t changed his mind as a new threat — the novel coronavirus, COVID-19 — has emerged.

Last week, however, representatives of another group of people with a long history of not doing much for the prisoners — lawmakers — sent a letter to defense secretary Mark T. Esper calling for clarification regarding what, if anything, the Pentagon is doing to “prevent the spread of the coronavirus disease 2019 (COVID-19) pandemic among detainees in the prison facility at the United States Naval Station Guantánamo Bay, Cuba (Guantánamo), as well as efforts to protect service members responsible for detention operations and all other military personnel at the base.”

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As $738 Billion Defense Bill Is Passed, Guantánamo Prisoners Are Ignored by Congress

A collaged image of the US Congress, and a prisoner at Guantánamo.

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




 

I wrote the following article 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.

Two months ago, I reviewed the situation at Guantánamo as it relates to Congress, providing a succinct summary of the extent to which Congress has — and hasn’t — been involved in establishing and maintaining the prison since it first opened nearly 18 years ago, and establishing that Congress has largely been complicit in the existence of Guantánamo.

Lawmakers facilitated its creation under George W. Bush, and, when both the Senate and the House were controlled by Republicans under Barack Obama, imposed restrictions on Obama’s efforts to close the prison, in the annual National Defense Authorisation Act (NDAA), that largely remain in place today.

These restrictions — on the countries to which prisoners can be released, on the transfer of any prisoner to the US mainland for any reason, and on spending any money to create a replacement for Guantánamo on the US mainland, or to close the facility in Cuba — largely make no difference under Donald Trump, because Trump has no interest in releasing prisoners, or in closing Guantánamo under any circumstances. As Military.com explained, the requirements regarding Guantánamo in the NDAA “fall in line with Trump’s Jan. 2018 executive order to keep Guantánamo open indefinitely.”

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Close Guantánamo’s Aims for 2020’s Presidential Election Year – and New Campaign Posters

Campaigners outside the White House calling for the closure of the prison at Guantánamo Bay on January 11, 2012, the 10th anniversary of the opening of the prison.

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





 

I wrote the following article 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.

For those of us who care about the ever-pressing need for the prison at Guantánamo Bay to be shut down for good, the coming year is going to be challenging.

As long as Donald Trump remains president, and, frankly, as long as Republicans retain control of either the Senate or the House of Representatives, it is reasonable to assume that there will be no movement whatsoever towards the closure of Guantánamo.

Forgotten or ignored, Guantánamo may not even be mentioned at all on the presidential trail, but we’ll be doing our best to make America remember this stain on its national conscience, where 40 men are still held, for the most part without charge or trial, in defiance of all the legal and judicial values the US claims to hold dear.

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Closing Guantánamo, the Democrats and the NDAA

Campaigners calling for the closure of the prison at Guantánamo Bay walk past Congress on January 11, 2012, the 10th anniversary of the opening of the prison.

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





 

I wrote the following article 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 long and dispiriting story of the prison at Guantánamo Bay, where, in defiance of its purported values, the US is holding men indefinitely without charge or trial, the role of Congress is not always well understood.

Under George W. Bush, lawmakers were largely compliant with the shameful innovations introduced after the terrorist attacks of September 11, 2001, passing the Authorization for Use of Military Force, the week after the attacks, which allowed the president to pursue anyone that he felt was associated with Al-Qaeda, the Taliban or associated forces, and to imprison them at the Guantánamo prison, which was deliberately established on the US naval base in Cuba to be beyond the reach of the US courts.

From the beginning, the men — and boys — held there were held without rights, and although long legal struggles led to them eventually securing habeas corpus rights, Congress fought back. However, when their habeas rights were eventually gutted of all meaning, the responsibility lay with ideologically malignant appeals court judges rather than Congress.

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US Readers: Please Tell Congress to Ease Restrictions on Transferring Prisoners Out of Guantánamo in the National Defense Authorization Act (NDAA)

A photo of the operating room at the prisoner hospital at Guantánamo, taken by a member of the US military on December 3, 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. If you can help, please click on the button below to donate via PayPal.





 

Ever since Barack Obama left the White House, in January 2017, having failed to close the prison at Guantánamo Bay, despite promising to do so on his second day in office eight years before, it has been difficult to see any light at the end of the tunnel when it comes to that wretched offshore prison. 

The 40 men still held are, for the most part, held indefinitely without charge or trial, while the few who are charged are caught in seemingly endless pre-trial hearings in the military commissions, a broken facsimile of a functioning judicial system. And in the White House, of course, is Donald Trump, who has no interest in justice when it comes to the Guantánamo prisoners; Donald Trump, who wants no one released under any circumstances, and would happily add to the prison’s population if he could.

However, a glimpse of light at the end of the tunnel finally re-emerged in November, in the mid-term elections, when Democrats took back control of the House of Representatives. Given the track record of the Obama years, it would be unwise to read too much into this slight shift in the balance of power amongst the US’s elected representatives, but, as Shilpa Jindia noted in a recent article for the Intercept, “On the anniversary of the prison’s opening in January, a coalition of NGOs visited with key House Democrats, who expressed support for various tactics to close Guantánamo.”

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200 Days Left in the Countdown to Close Guantánamo: Please Send Photos Reminding President Obama on Independence Day

Close Guantanamo co-founder Andy Worthington's son Tyler holding up a poster reminding President Obama that, on July 3, 2016, he has just 200 days left to close Guantanamo, as he first promised when he took office in January 2009.I wrote the following article 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.

This Sunday, July 3, President Obama will have just 200 days left of his presidency; 200 days, in other words, to fulfill the promise he made, on his second day in office, to close the prison at Guantánamo Bay. On January 22, 2009, he actually promised to close Guantánamo within a year, but although it is now nearly seven and a half years since that promise, it remains important for President Obama’s legacy that he does all he can to fulfill his promise before he leaves office.

Send us your photos!

To mark the occasion, we are asking those who want to see Guantánamo closed to print off a poster reminding President Obama that he has just 200 days left to close Guantánamo, take a photo of yourself with it, and send it to us, to put up on the website here, and also on social media (see our Facebook and Twitter pages), and we will be making sure that we tie in publicity to the values of the US, as celebrated on Independence Day the day after.

We began the Countdown to Close Guantánamo in January, when I appeared on Democracy Now! with music legend Roger Waters, and we have been counting down every 50 days, supporting President Obama, who has stepped up his efforts to close the prison this year, promising to release the men approved for release (29 of the 79 men still held) by the end of summer, and to complete reviews for all the other men, except the ten facing trials, before the end of the year. Read the rest of this entry »

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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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