SKYE GRAHAM-WELTON
Even before he took office, President Trump made it clear that under his presidency, those detained at the military prison at Guantánamo Bay would stay there. He stated on twitter last year that “there should be no more further releases” from the prison, describing the inmates as “extremely dangerous people.”[i] According to Trump, regardless of how long these prisoners had been locked up, whether their detentions were based on false information, or whether they had even been charged with any crimes – they would not be released.
It is further evident that Trump is not just moving away from the efforts of his two predecessors to reduce the population of the prison and, eventually, to close it, but looking to make it bigger – to “load it up with some bad dudes,”[ii] as he said.
Today, 41 men remain imprisoned at Guantánamo. Thirteen either have active cases in the military commission system or have been convicted. The rest have been held as enemy combatants, without charge, for up to 16 years. Five of those have been cleared for transfer, meaning that the US government long ago determined that they pose no security threat. Many of these men were arrested under questionable circumstances and some were tortured, either at CIA black sites or at Guantánamo itself.
On January 11, 2018 – the 16th anniversary of the Guantánamo prison’s opening, 11 of these “forever prisoners” filed a habeas corpus petition[iii] in the United States District Court in Washington DC. The petition argues that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, is arbitrary and amounts to “perpetual detention for detention’s sake” violating both US and international law.
“The President has explicitly endorsed indefinite detention rather than a detention ‘informed by the laws of war,’ which was the position of his predecessors,” the lawyers wrote in the petition. “This defiant policy exceeds his authority under the 2001 Authorization for Use of Military Force (“AUMF”), which permits detention only for the narrow purpose of preventing the return of detainees to the battlefield.”
The filing argues that the Due Process Clause of the Constitution applies at Guantánamo, and thus continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired; detention now, 16 years into Guantánamo’s operation is purely based on Trump’s “antipathy towards this prisoner population, all foreign-born Muslim men, and toward Muslims more broadly.”
During their respective presidencies, George W. Bush and Barack Obama looked to AUMF as the legal justification for holding suspects at Guantánamo. Both administrations had review processes in place to determine whether continued detention was necessary for each prisoner – and both presidents publicly stated their intention to close the detention site. While human rights lawyers argued with the Bush and Obama administrations over whether the review processes were sufficient, they accepted the government’s general intention to eventually release or charge all those detained at Guantánamo. During his presidency, Bush released 532 detainees. Obama transferred out another 197. However, since Trump came into office, there have been no prisoners released from the facility (despite five men having already been cleared for transfer) and no indication that any ever will be during Trump’s presidency.
One of the plaintiffs, a 45-year-old Yemeni named Tolfiq al Bihani,[iv] has been held at Guantánamo for nearly 15 years. He was cleared for conditional release in 2010. The Saudi government agreed to accept him in 2016, along with nine other Yemenis. Those nine were all transferred,[v] but Mr. al Bihani remains at Guantánamo without explanation.
Abu Zubaydah, a so-called “high-value detainee” is also amongst the men filing the habeas challenge. He is the only man in the world to have endured all of the authorized “enhanced” interrogations, though he also suffered many techniques – like ‘rectal rehydration’ – that were never approved.[vi] After years of inflicting torture on this man, the Senate Select Committee on Intelligence released a report[vii] in 2014 admitting their mistake; Zubaydah was never a member of al-Qaeda, let alone one of its high-ranking officers and had no connection to the attacks of 9/11 or to al-Qaeda’s terror. Still, Zubaydah remains at Guantánamo.
Many believe that because of the brutal torture methods Zubaydah endured (he was waterboarded 83 times in one month, confined in boxes the size of a coffin or smaller, slammed into a wall, deprived of sleep and lost his left eye) it is almost certain that he will remain in US custody without being charged for the rest of his life. Certainly, it would be difficult to separate out information gained by torture, making it unlikely that Zubaydah will be tried in court. Further, even if government officials no longer view him as a threat, it is unlikely that the intelligence community will sign off on releasing a man with such extensive firsthand knowledge of their torture program.
However, as the lawyers in the recent habeas corpus petition note, indefinite detention without trial violates US obligations under international law.
Reprieve attorney Shelby Sullivan-Bennis, who represents prisoners at GTMO, said, “Since Guantánamo opened, it’s been clear to all – including US officials – that the detainees were being held on that basis of mistakes, faulty evidence and force ‘confessions.’ The US has had 16 years to build a case against these men, and yet 28 of 41 prisoners are held without charge or a trial of any kind – a shocking violation of America’s founding principles. If the president won’t close Guantánamo, then the other branches of government must take action instead to finally restore the rule of law.”
Overall, this new legal challenge represents a true test of America’s commitment to its most important founding principles – the guarantee of due process and the right to habeas corpus – at the Guantánamo prison. How long will we continue to tolerate the detention of men without charge?
[i] https://twitter.com/realdonaldtrump/status/816333480409833472?lang=en
[ii] https://www.youtube.com/watch?v=j7dmMI3CtKI
[iii]https://ccrjustice.org/sites/default/files/attach/2018/01/AlBihani_et_al_v_Trump_MotionforOrderGrantingWrit.pdf
[iv] https://www.nytimes.com/interactive/projects/guantanamo/detainees/893-tolfiq-nassar-ahmed-al-bihani
[v] https://www.nytimes.com/2016/04/17/us/politics/9-guantanamo-prisoners-from-yemen-are-sent-to-saudi-arabia.html?_r=0
[vi] http://time.com/4483958/abu-zubaydah-guantanamo/
[vii] https://www.gpo.gov/fdsys/pkg/CRPT-113srpt288/pdf/CRPT-113srpt288.pdf
