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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Video: The Annual New America Panel Discussion About Guantánamo, Featuring Karen Greenberg, Tom Wilner and Myself

A screenshot of “Guantánamo at Twenty-One: What is the Future of the Prison Camp?”, an online panel discussion held by New America on Jan. 11, 2023, the 21st anniversary of the opening of the prison.

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Almost every year since 2011, the New America think-tank in Washington, D.C. has generously hosted panel discussions about Guantánamo with the attorney Tom Wilner and I, at which we have been joined by a number of other guests.

At the time of that first event, Barack Obama was the president, and 173 men were still held. In 2012 we marked the 10th anniversary of the prison’s opening, also launching the Close Guantánamo campaign, returning every year thereafter, except for 2014, when Tom and I were both too dispirited to summon up any enthusiasm. The 2016 event coincided with a “Countdown to Close Guantánamo” campaign, launched by Andy and Roger Waters on Democracy Now!, to put pressure on Obama to finally fulfill his promise to get the prison closed, but, when Obama left office, 41 men were still held, who then had endure four years of hostility from a president who had no interest in releasing any of them.

Having moved the events online in 2021, because of Covid, Tom and I and our by now regular companion, Karen Greenberg, the Director of the Center on National Security at Fordham Law School, met again online a year ago to discuss Guantánamo on its 20th anniversary, when we were, I think it’s fair to say, caught been hope and pessimism, but this year, sadly, hope is losing that battle.

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Free The Guantánamo 20: Events Marking the 21st Anniversary of the Opening of the Prison

The 20 men approved for release from Guantánamo but still held, an image put together by Andy Worthington for the Close Guantánamo campaign.

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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.

With a heavy heart, the small but dedicated group of human rights activists from across the United States and around the world who, on a daily basis, are appalled by the continued existence of the fundamentally lawless prison at Guantánamo Bay are preparing to mark the 21st anniversary of its opening this Wednesday, Jan. 11.

This anniversary I’ll be in London (not the US as I was every Jan. 11 from 2011 to 2020), but I’m hoping that I’ll still be able to make waves, along with my American friends and colleagues, and this year I’m particularly focusing on the 20 men, out of the 35 still held — who have been approved for release, but are still held.

Photos of these 20 men are in the composite image at the top of this article, which I made a few days ago, and when I posted it on Facebook, I explained, “16 of these men have been approved for release since President Biden took office, while three others were approved for release in 2010, but are still held, and one other man was approved for release in the dying days of the Trump presidency.”

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“The Endless Shame of Guantánamo Bay”: Close Guantánamo Co-Founders Tom Wilner and I Are Profiled in an Article in The New Republic

A screenshot from a video of Tom Wilner and Andy Worthington discussing the closure of Guantanamo at the New America think-tank in Washington, D.C. on January 11, 2013.

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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.

We’re honored that The New Republic magazine has profiled Tom Wilner and I, as the co-founders of the Close Guantanamo campaign, in their latest issue, in an article entitled, “The Endless Shame of Guantánamo Bay,” following interviews with Tom and I that were conducted in April by reporter Jordan Michael Smith.

When Smith first approached us, he stated that the intention of the article would be “focusing on people waging the lonely campaign to close Guantánamo, when so many Americans have forgotten about it,” and the finished article effectively weaves our recollections and reflections into a timeline of the prison’s unforgivably long history — 20 and a half years and counting.

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Video: I Discuss “Guantánamo at Twenty: What is the Future of the Prison Camp?” with Tom Wilner, Karen Greenberg and Peter Bergen at New America

A screenshot of Andy Worthington with Tom Wilner, Karen Greenberg and Peter Bergen at “Guantánamo at Twenty: What is the Future of the Prison Camp?”, an online discussion hosted by New America on Jan. 11, 2022, the 20th anniversary of the opening of the prison.

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The 20th anniversary of the opening of the prison at Guantánamo Bay was marked by a flurry of mainstream media activity, and, for those us who work on Guantánamo regularly (or even incessantly), it was extraordinarily busy.

I worked almost non-stop on Guantánamo from 8.30 in the morning until 3am the day after, in what was probably the busiest day of my life, starting with a brief but helpful interview with BBC Radio Scotland (about two hours and 45 minutes into the show), and proceeding with a half-hour Turkish TV show with other experts, an online panel discussion at New America in Washington, D.C., and a Virtual Vigil hosted by Amnesty International and other groups. In between these events, I wrote and published an article calling for action from President Biden, posted 50 photos of Close Guantánamo supporters holding up posters calling for its closure, and also uploaded and posted a video of my band The Four Fathers playing ‘Forever Prisoner’, a new song I wrote about Khaled Qassim, one of the men still held indefinitely at Guantánamo without charge or trial.

Over the next week or so, I’ll be posting articles linking to these events, doing what I’ve been doing for most of the last 16 years: trying to keep a focus on the injustices of Guantánamo, and the ever-urgent need for it to be closed, when the mainstream media moves on (as it has done already after briefly remembering the prison on Tuesday).

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Close Guantánamo Events to Mark the 20th Anniversary of the Opening of the Prison

Campaigners (and former prisoner Mansoor Adayfi) call for the closure of Guantánamo on Jan. 5, 2022, when it had been open for 7,300 days.

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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 we approach a grim anniversary that all decent people hoped would never arrive — the 20th anniversary of the opening of the prison at Guantánamo Bay — I’m taking part in a number of events to mark the anniversary — mostly online, although a few are carefully organized live events — along with Tom Wilner, with whom I co-founded the Close Guantánamo campaign ten years ago. We are also both available for interviews and media appearances.

Yesterday, the prison had been open for 7,300 days, and as I noted in a message to President Biden, to accompany his photo as part of our ongoing poster campaign, “How did this happen? It’s nearly a year since you took office, and yet you have only released one prisoner, even though 13 others — out of the 39 men still held — have been approved for release by high-level U.S. government review processes. Eight of these men have been approved for release since you took office, and yet none of them have been freed. Approving men for release means nothing unless they are actually freed.”

As I also explained, “In six days’ time, Guantánamo will have been open for 20 years. This is a truly shameful anniversary, and yet, despite making noises about wanting to close the prison, you and your administration have done nothing to demonstrate that you actually mean it. Please show some courage. Release the men approved for release, and announce how you intend to close the prison once and for all.”

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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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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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Clinton Advisor Anthony Lake and Close Guantánamo Co-Founder Tom Wilner Call on President Biden to Close the Prison

Anthony Lake, national security adviser to President Clinton from 1993 to 1997 (photo via Unicef), and Close Guantánamo co-founder Tom Wilner, photographed calling for the closure of Guantánamo in Washington, D.C. on January 11, 2012 (photo via Shrieking Tree).

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.





 

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 a recent op-ed for The Hill, Anthony Lake, national security adviser to President Clinton from 1993 to 1997, and Close Guantánamo co-founder Tom Wilner, who was counsel of record to Guantánamo detainees in the two Supreme Court cases establishing their right to habeas corpus and in the case establishing their right to legal counsel, made a powerful case for the closure of the prison at Guantánamo Bay, which we’re pleased to be cross-posting below.

Thursday marked the end of the first 100 days of Joe Biden’s presidency, and while we’re aware that the new administration has had a huge workload to deal with after four ruinous years of the Trump presidency, and with the unprecedented challenge of dealing with Covid-19, it remains imperative that the scandal of the prison at Guantánamo is dealt with sooner rather than later, because its continued existence is an affront to all of the US’s cherished notions of itself as a country that respects the rule of law.

Using, as a springboard, the recent release of the movie “The Mauritanian,” which tells the story of former Guantánamo prisoner, torture victim and best-selling author Mohamedou Ould Slahi, Lake and Wilner run through the reasons why Guantánamo’s continued existence is so shameful and counter-productive — a hugely expensive offshore prison where the US “detains men indefinitely, without charge or trial or the basic protections of due process of law,” whose continued existence also damages US national security by inflaming tensions within the Muslim world.

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Guantánamo Voices: An Amazing Comic Book Version of the Guantánamo Story

The front cover of “Guantánamo Voices: True Accounts from the World’s Most Infamous Prison,” and a page from the chapter based on an interview with attorney Shelby Sullivan-Bennis, featuring the campaign to secure the release of Shaker Aamer, the last British resident in the prison, drawn by Kasia Babis, a Polish cartoonist and political activist.

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.

I have nothing but praise for “Guantánamo Voices: True Accounts from the World’s Most Infamous Prison,” a brand-new book, just published by Abrams, which was written by Portland-based multi-media journalist Sarah Mirk, and illustrated by a number of talented graphic artists.

I should say upfront that I was the fact checker for the book, having been in contact with Sarah for many years. In 2018, I appeared, in comic book form, illustrated by the Australian artist Jess Parker, in Guantánamo Bay is Still Open. Still. STILL!, a story in the comics anthology magazine The Nib, for which Sarah is an editor, based on an interview she had conducted with me in October 2017.

Previously, I had met Sarah in London in January 2009, when she came to the UK with former Guantánamo guard Chris Arendt for an extraordinary tour of the UK, also featuring former prisoner and British citizen Moazzam Begg (released in 2005) and other ex-prisoners, called “Two Sides, One Story,” which was organized by the advocacy group Cageprisoners (now CAGE).

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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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