The Enemy Within: How the US Justice Department Has Spent 19 Years Defending Arbitrary Detention at Guantánamo

Campaigners for the closure of Guantánamo outside the Justice Department in Washington, D.C. on January 11, 2015, the 13th anniversary of its opening (Photo: Debra Sweet via Flickr).

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It’s a sign of the chronic failure of the US justice system to deliver anything resembling justice to the men held at Guantánamo Bay that, nearly 20 years after the prison was established to hold them, for the most part, indefinitely without charge or trial — even though they were never adequately screened at the time of their capture — lawyers and judges are still arguing about whether or not those men have any right to see the government’s purported evidence against them.

Specifically, the arguments involve the extent to which — if at all — the Fifth Amendment’s Due Process Clause applies to the men held at Guantánamo, in which the most prominent players resisting its application have been, historically, judges in the appeals court in Washington, D.C. (the D.C. Circuit), and lawyers in the Civil Division of the Justice Department, who, under George W. Bush, Barack Obama and Donald Trump, and now under Joe Biden, have strenuously resisted efforts to extend to the Guantánamo prisoners any meaningful right to challenge the basis of their imprisonment.

On a very fundamental level, these arguments shouldn’t even be taking place at all. Way back in the mists of time, in Boumediene v. Bush, in June 2008, when the Supreme Court affirmed the Guantánamo prisoners’ constitutionally guaranteed right to challenge the basis of their detention via a writ of habeas corpus, the Court’s intention was that they would be entitled to a “meaningful review” of the basis of their imprisonment, in which the government would have to present its evidence openly, and have it challenged.

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Over 330,000 Concerned Citizens Sign a Petition Urging President Biden to Close Guantánamo

Campaigners outside the White House, on September 20, 2021, prepare to deliver a petition to President Biden, signed by over 330,000 concerned citizens, calling on him to close the prison at Guantánamo Bay without further delay.

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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 Monday, largely unnoticed by the mainstream media, campaigners delivered a petition to the White House, signed by over 330,000 people, urging President Biden to close the prison at Guantánamo Bay. They were joined online by former prisoner Mansoor Adayfi, whose Guantánamo memoir, “Don’t Forget Us Here,” was published last month.

This impressive achievement was coordinated by the progressive activist network Daily Kos, MPower Change, which describes itself as “the largest Muslim led social and racial justice organization in the United States,” and other organizations familiar to those engaged in the long struggle to get Guantánamo closed — Amnesty International USA, the Center for Constitutional Rights, and the Justice for Muslims Collective — as well as the Juggernaut Project, NorCal Resist, Progress America, the Progressive Reform Network, and South Asian Americans Leading Together (SAALT).

The date chosen was the 20th anniversary of George W. Bush’s declaration to Congress that the US was launching a “war on terror” in response to the terrorist attacks on September 11, 2001. As Bush said on that day, “Our enemy is a radical network of terrorists and every government that supports them. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.”

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Radio: I Discuss the Never-Ending Limbo of Guantánamo with Chris Cook on Gorilla Radio

Andy Worthington calling for the closure of the prison at Guantánamo Bay outside the White House on January 11, 2020, and the logo for Chris Cook’s Gorilla Radio show in Victoria, Canada.

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Yesterday, I was delighted to talk to Chris Cook, for his Gorilla Radio show, broadcast every Thursday morning on CFUV 101.9FM in Victoria, on Vancouver Island in Canada. Chris and I have spoken many times over the years, and his show admirably fulfills its remit to cover topics relating to “social justice, the environment [and] community,” and to “provid[e] a forum for people and issues not covered in the corporate media.”

Chris and I spoke in the second half of the one-hour show, which is available here as an MP3.

At the start of the show, Chris spoke about the US’s recent drone attack in Afghanistan, in which civilians, mistakenly identified as ISIS-K terrorists, were killed. He noted that Rep. Adam Schiff, the chairman of the House Intelligence Committee, has “expressed regret for those killed in what he characterized a ‘mistake with horrific consequences,’” but asked, pointedly, “why America was continuing its attacks against the country it has reportedly withdrawn from.”

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On the 20th Anniversary of the 9/11 Attacks, the US Needs to Close Guantánamo and Bring to an End the Broken Military Commission Trials

The 9/11 attacks and Camp 6 at Guantánamo, photographed in 2016.

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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 the 20th anniversary of the terrorist attacks of September 11, 2001, the United States’ response to those attacks, both militarily and in terms of the law, couldn’t, in all honesty, have ended up more broken, unjust and embarrassing.

Having invaded Afghanistan a month after the attacks, the last US troops withdrew last month, effectively conceding defeat to the Taliban, whose overthrow had been one of the two justifications for the invasion, the other being the destruction of Al-Qaeda, the organization allegedly responsible for the attacks.

In fact, the Taliban were quite swiftly defeated after the US-led invasion, but, instead of withdrawing, US forces stayed on, blundering around the country, largely unable to identify allies from enemies, and definitively losing “heart and minds” through repeated bombing raids, often based on poor intelligence, that killed an enormous number of Afghan civilians, and through imprisoning many thousands of Afghans in lawless and often brutal conditions at Bagram and Guantánamo.

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The Taliban’s Victory in Afghanistan Mustn’t Prevent the Closure of Guantánamo

Asadullah Haroon Gul and Muhammad Rahim, the last two Afghans in Guantánamo. Following the Taliban victory in Afghanistan, in which it has been revealed that two former Guantánamo prisoners hold leadership positions in the Taliban, some right-wing commentators are insinuating that Guantánamo should remain open. However, neither Gul nor Rahim, nor any of the other 37 men still held, were members of the Taliban, and, as “forever prisoners,” held without charge or trial, the two Afghans are amongst 17 of the remaining 39 prisoners who, it is now widely recognized in US circles, must be released if they are not to be charged with crimes.

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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.

As the final US troops left Afghanistan two weeks ago, and the Taliban rolled into Kabul, taking the Presidential Palace on August 15 after President Ashraf Ghani fled, the presence of one particular Taliban member — Mullah Abdul Qayyum Zakir — caught the attention of the western media, when he declared that he had been held at Guantánamo for eight years.

Guantánamo: the mere mention of the word, from the mouth of a conquering Talib, standing in the very place so recently occupied by the US-backed president, reinvigorated the right-wingers in Congress, and in the US media, who had been worried that President Biden might finally close their beloved gulag once and for all.

Once upon a time, the merest mention of Guantánamo had summoned up images of bloodthirsty Al-Qaeda terrorists, hell-bent on the destruction of America, that had helped to keep ordinary Americans docile, and in a state of fear. However, over the years, as the horrors of Guantánamo leaked out to the world, revealing the use of torture and other forms of abuse on prisoners who, for the most part, were not involved in any kind of terrorism at all, defending its existence became more difficult. By his second term, even George W. Bush was aware that it was an embarrassment, and left office having released 532 of the 779 men he had imprisoned there.

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75 House Representatives Urge President Biden to Close the Prison at Guantánamo Bay

Campaigners calling for the closure of the prison at Guantánamo Bay stand in front of the U.S. Congress on January 11, 2020, the 19th anniversary of the prison’s opening (Photo: Alli Jarrar).

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Ever since the inauguration of Joe Biden as President, nearly seven months ago, an impressive and unprecedented number of organizations and significant individuals have been queuing up to urge him to finally close the prison at Guantánamo Bay, that wretched symbol of executive overreach created as part of the misguided “war on terror” that the Bush administration launched in the wake of the terrorist attacks of September 11, 2001.

In January, seven former prisoners (all authors) had a letter published in the New York Review of Books calling for the prison’s closure, followed in February by a letter from 111 human rights organizations, including the Close Guantánamo campaign, which I co-founded in January 2012 with the U.S. attorney Tom Wilner.

There have also been op-eds by former Bill Clinton advisor Anthony Lake and Tom Wilner, by Lee Wolosky, the former Special Envoy for Guantánamo Closure in the State Department, by retired Rear Admirals Donald J. Guter and John Hutson, by former CIA analyst Gail Helt, by Valerie Lucznikowska of September 11 Families for Peaceful Tomorrows, by the attorney Benjamin R. Farley, who represents one of the men accused of involvement in the 9/11 attacks, as part of the DoD’s Military Commissions Defense Organization, and by Omar Ashmawy, a former prosecutor in the military commissions.

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Biden Frees First Prisoner from Guantánamo: Abdul Latif Nasser, Approved for Release Five Years Ago

Abdul Latif Nasser, in a photo taken at Guantánamo in recent years.

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In great news from Guantánamo, the Department of Defense announced today that Abdul Latif Nasser (aka Nasir), the last Moroccan national in the prison at Guantánamo Bay, has been repatriated. I’ve been writing about Nasser’s case since I first began researching and writing about Guantánamo over 15 years ago, and in recent years his story has frequently featured in the media, not least via a six-part Radiolab series last year.

Nasser, 56, was approved for release five years and eight days ago, after a Periodic Review Board, a review process set up under President Obama, established that, to use the PRB’s own studiously careful terminology, “law of war detention of Abdul Latif Nasir no longer remained necessary to protect against a continuing significant threat to the national security of the United States.” As a result, as the DoD’s news release explained, the board — which “consists of one senior career official from the Departments of Defense, Homeland Security, Justice, and State, along with the Joint Staff and the Office of the Director of National Intelligence” — authorized his “repatriation to his native country of Morocco, subject to security and humane treatment assurances.”

Nasser’s release from Guantánamo should have been straightforward, but the paperwork between the US and the Moroccan government wasn’t completed until 22 days before Obama left office, and, because legislation passed by Congress stipulated that lawmakers had to be informed 30 days before a prisoner release, he missed being freed by just eight days.

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How the Law Failed at Guantánamo

The isolated prison cells of Camp 5 at Guantánamo, where the “high value detainees,” brought to the prison from CIA “black sites” in September 2006, were recently transferred, after their previous cell block, Camp 7, was judged to be unfit for purpose.

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Just five days ago, on July 11, the prison at Guantánamo Bay marked another sad and unjustifiable milestone in its long history — nineteen and a half years since it first opened on January 11, 2002.

From the beginning, Guantánamo was a project of executive overreach — of the US government, under George W. Bush, deciding, after the 9/11 attacks, that the normal rules governing the imprisonment of combatants during wartime should be swept aside. The men who arrived at Guantánamo were deprived of the protections of the Geneva Conventions, and were designated as “unlawful enemy combatants,” who, the Bush administration claimed, could be held indefinitely. For those who were to be charged with crimes, the Bush administration revived the military commission trial system, last used for German saboteurs in the Second World War, deciding that acts of terrorism — and even some actions that were a normal part of war, such as engaging in firefights — were war crimes. The result was that soldiers came to be regarded as terrorists, and alleged terrorists came to be regarded as warriors, with the former denied all notions of justice, and the latter provided only with a legal forum that was intended to lead to their execution after cursory trials.

The mess that ensued has still not been adequately addressed. Nearly two and a half years after Guantánamo opened, the Supreme Court took the unusual step of granting habeas corpus rights to wartime prisoners, having recognized that the men held had no way whatsoever to challenge the basis of their imprisonment if, as many of them claimed, they had been seized by mistake. That ruling, Rasul v. Bush, allowed lawyers into the prison, to begin preparing habeas corpus cases, but on the same day, in another ruling, Hamdi v. Rumsfeld, the Supreme Court essentially approved Guantánamo as the venue for the exercise of a parallel version of the wartime detention policies of the Geneva Conventions, ruling that prisoners could be held until the end of hostilities — an unwise move, given that the Bush administration regarded its “war on terror” as a global war that ignored geographical context, and could last for generations.

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Former Military Commissions Prosecutor Calls for the Closure of Guantánamo

Former Guantánamo military commissions prosecutor Omar Ashmawy, and a court sketch of Salim Hamdan, at his trial in 2008, one of only two military commission cases that have proceeded to full trials since Guantánamo was first established 19 and a half years ago.

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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.

Since Joe Biden was inaugurated as president in January, there has been a considerable outpouring of high-level demands for the closure of the shameful and disgraceful prison at Guantánamo Bay, which marked the 19th anniversary of its opening just before Biden’s inauguration, as the fatigue of the Trump years, when the White House was occupied by a president with no interest in addressing the horrors of Guantánamo, came to an end.

In January, seven former prisoners (all authors) had a letter published in the New York Review of Books calling for the prison’s closure, followed in February by a letter from 111 human rights organizations, including Close Guantánamo. Most significantly, in April, 24 Democratic Senators, including Dick Durbin, Patrick Leahy and Dianne Feinstein, followed up with their own demand for the prison’s closure, including detailed explanations of how that is possible.

There have also been op-eds by former Bill Clinton advisor Anthony Lake and Close Guantánamo co-founder Tom Wilner, by Lee Wolosky, the former Special Envoy for Guantánamo Closure, by retired Rear Admirals Donald J. Guter and John Hutson, by former CIA analyst Gail Helt, by Valerie Lucznikowska of September 11 Families for Peaceful Tomorrows, and by the attorney Benjamin R. Farley, who represents one of the men accused of involvement in the 9/11 attacks, as part of the DoD’s Military Commissions Defense Organization.

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UN Experts Condemn UAE Plans to Forcibly Repatriate Former Guantánamo Prisoner Ravil Mingazov to Russia, Where He Faces “Substantial Risk of Torture”

Ravil Mingazov, photographed at Guantánamo before his transfer to the UAE in January 2017.

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Yesterday (July 2), UN human rights experts, including Nils Melzer, the Special Rapporteur on Torture, condemned the United Arab Emirates (UAE) for its proposals to repatriate Ravil Mingazov, a former Guantánamo prisoner who was sent to the UAE from Guantánamo in January 2017, just before President Obama left office.

Despite what the experts describe as “informal assurances guaranteeing his release into Emirati society after undergoing a short-term rehabilitation programme,” Mingazov — and 22 other former prisoners (18 Yemenis and four Afghans), who were sent to the UAE from Guantánamo between November 2015 and January 2017 — found that, on their arrival in the UAE, the assurances evaporated, and they have instead been “subjected to continuous arbitrary detention at an undisclosed location in the UAE, which amounts to enforced disappearance.”

The only exceptions to this continued pattern of “arbitrary detention” and “enforced disappearance” are three of the Afghans, who, after suffering the same disgraceful treatment, were repatriated as a result of peace negotiations in Afghanistan involving the Afghan government and Hezb-e Islami Gulbuddin (HIG), a militant group that had supported al-Qaeda at the time of the US-led invasion of 2001, but that reached a peace deal with the Afghan government in 2016.

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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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