As Guantánamo Enters Its 17th Year of Operations, Lawyers Hit Trump with Lawsuit Stating That His Blanket Refusal to Release Anyone Amounts to Arbitrary Detention (original) (raw)

January 11 was the 16th anniversary of the opening of the prison at Guantánamo, and as campaigners (myself included) were making their way to the White House to prepare for the annual protest against the prison’s continued existence — the first under Donald Trump — and, in my case, to launch the new poster campaign counting how many days Guantánamo has been open, and urging Donald Trump to close it, lawyers with the Center for Constitutional Rights and Reprieve were launching a new lawsuit at the National Press Club prior to joining the protesters.

The lawsuit was brought on behalf of eleven prisoners, and, as CCR’s press release states, it “argues that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to ‘perpetual detention for detention’s sake.’”

CCR Senior Staff Attorney Pardiss Kebriaei said, “It’s clear that a man who thinks we should water-board terror suspects even if it doesn’t work, because ‘they deserve it, anyway’ has no qualms about keeping every last detainee in Guantanamo, so long as he holds the jailhouse key.”

CCR’s press release also stated, “The filing argues that 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 based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly,” adding that “Donald Trump’s proclamation that he will not release any detainees during his administration reverses the approach and policies of both President Bush and President Obama, who collectively released nearly 750 men.”

The eleven men are: Tawfiq al-Bihani (ISN 893) aka Tofiq or Toffiq al-Bihani, a Yemeni who was approved for release by Obama’s Guantánamo Review Task Force in 2010, Abdul Latif Nasser (ISN 244) aka Abdu Latif Nasser, a Moroccan approved for release in 2016 by a Periodic Review Board, a parole-type process, and nine others whose ongoing imprisonment was upheld by their PRBs: Yemenis Zohair al-Sharabi aka Suhail Sharabi (ISN 569), Said Nashir (ISN 841), Sanad al-Kazimi (ISN 1453) and Sharqawi al-Hajj (ISN 1457), Pakistanis Abdul Rabbani (ISN 1460) and Ahmed Rabbani (ISN 1461), the Algerian Saeed Bakhouche (ISN 685), aka Said Bakush, mistakenly known as Abdul Razak or Abdul Razak Ali, Abdul Malik aka Abdul Malik Bajabu (ISN 10025), a Kenyan, and one of the last men to be brought to the prison — inexplicably — in 2007, and Abu Zubaydah (ISN 10016), one of Guantánamo’s better-known prisoners, a stateless Palestinian, for whom the post-9/11 torture program was initially conceived, under the mistaken belief that he was a high-ranking member of al-Qaeda.

In seeking a writ of habeas corpus, the lawyers, who include CCR’s Pardiss Kebriaei and Reprieve’s Shelby Sullivan-Bennis, write of the 11 men, “Many are suffering the devastating psychological and physiological consequences of indefinite detention in a remote prison camp where they have endured conditions devised to break human beings, and where the aura of forever hangs heavier than ever. Given President Donald Trump’s proclamation against releasing any petitioners – driven by executive hubris and raw animus rather than by reason or deliberative national security concerns – these petitioners may never leave Guantánamo alive, absent judicial intervention.”

They add, “Petitioners have participated in habeas corpus litigation that this Court and the higher courts have entertained for years, but this motion, brought by detainees collectively, is different – as it has to be. The two prior presidential administrations released a total of nearly 750 men. They did so by making case-by-case determinations based on an individual detainee’s circumstances in a manner that was purportedly tailored to the executive branch’s interest in national security.”

In contrast, however, Donald Trump “has declared and is carrying out his intention to keep all remaining detainees in Guantánamo, regardless of their individual circumstances – presumably even those the executive branch previously determined need no longer be detained. 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 AUMF, passed the week after the 9/11 attacks, authorized the president to pursue those assessed to have been involved in the 9/11 attacks, as part of al-Qaeda or the Taliban, and in Hamdi v. Rumsfeld, in 2004, the Supreme Court affirmed that it justified imprisonment until the end of hostilities — a ruling that I have regarded, over the years, as endorsing the existence of a parallel version of the Geneva Conventions in the US, even though there has never been a viable explanation presented as to why the Geneva Conventions should need a parallel version for the US alone.

The lawyers note that, instead of being justifiable, Trump’s policy is “a symbolic, undifferentiated assertion of this President’s expectation of absolute executive authority and a rejection of the policy framework that has governed Guantánamo detentions for years,” adding, “Not least, it is a demonstration of his antipathy toward this prisoner population, all foreign-born Muslim men, and toward Muslims more broadly, of the kind courts have properly rejected in recent months” — via rulings against Trump’s Muslim travel ban.

Defending the need for habeas corpus, the lawyers note that the Supreme Court has consistently held that the Due Process Clause of the Constitution “places substantive limits on noncriminal detention, regardless of the facts or procedures that may have justified an initial detention decision years earlier,” adding, ”That includes a prohibition on perpetual detention disconnected from any legitimate purpose; and group detention of an additional four or eight years based on executive fiat and animus [under Trump, envisioning a possible second term] is the type of arbitrary executive action due process is designed to check.”

They also state, referring to the five men approved for release, “Continuing detention is particularly arbitrary for those Petitioners whom the executive branch has already cleared for transfer – and thus where detention is concededly without a bona fide purpose.”

Referring to the AUMF, which, in 2004, as noted above the Supreme Court in Hamdi v. Rumsfeld “held may authorize limited military detention,” the lawyers state that it must now be accepted that the AUMF “can no longer support the detention” of Guantánamo prisoners. They explain, “Whatever authorization for detention may have existed in 2004, for the limited law-of-war purpose of preventing Mr. Hamdi’s return to the battlefield in which he was allegedly captured three years prior, Hamdi did not authorize perpetual detention, disconnected from any legitimate purpose, of the kind Petitioners now endure.”

They add that, in addition, as the majority judges in Hamdi predicted, “the traditional law-of-war understanding that may have justified detention in 2004 has ‘unraveled,’ as the ‘practical circumstances’ of the conflict with Al Qaeda have long ceased to resemble any of the conflicts that informed the development of the law of war.”

They continue, “The battlefield at issue in Hamdi, which was active in the months after 9/11, is today no more than an amorphous, interminable morass, global in scope, that could justify Petitioners’ lifetime imprisonment if left unchecked. The Hamdi Court acknowledged that the prospect of perpetual detention would indeed be a troubling one, but left the legality of it for another day; that day is today.”

The lawyers conclude their argument with a reference to Boumediene v. Bush, the 2008 case in which the Supreme Court granted the prisoners constitutionally guaranteed habeas rights. In that case, the lawyers, state, the court recognized that habeas had “developed to prevent arbitrary executive imprisonment and was constitutionally guaranteed by the Suspension Clause to prevent cyclical abuses of executive power.”

They add, “The President’s apparent policy to detain for detention’s sake, driven by religious animus, is unlawful. The obligation of the habeas court is clear. Because Petitioners’ detentions violate the Constitution and the AUMF, their habeas petitions should be granted. And, should the President wish to detain Petitioners, the Constitution offers him one valid process to do so.

That process, they state, is that the executive branch may “hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.” The source, ironically, is Justice Antonin Scalia, dissenting from the majority in Hamdi v. Rumsfeld.

I have no idea if this lawsuit will succeed in its aim, but it should, because not only is the ongoing existence of Guantánamo an abomination, but, very specifically, Donald Trump’s refusal to contemplate releasing anyone under any circumstances (except, it seems, Ahmed al-Darbi, who agreed to a plea deal in his military commission in 2014 and will be repatriated to Saudi Arabia for ongoing imprisonment) is indeed, as the lawyers state, making his Guantánamo a place of arbitrary detention — and that has no place in any country that claims to respect the rule of law and to regard itself as civilized.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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