For all of the criticism he received over Guantanamo Bay, President George W. Bush released 532 of its 780 orange-clad inmates. And, while President Obama’s Guantanamo policy satisfied no one, he did try desperately to empty the place, leaving only 41 symbols of America’s historical attempt to evade legal constraints in the so called ‘war on terror’. The Trump administration only recently transferred its first Guantanamo detainee, Ahmed Haza al-Darbi, in belated compliance with a plea agreement struck under the previous administration. Civil liberties campaigners suggest it’s an exception that will prove the rule.
Donald Trump said shortly before his inauguration that ‘There should be no further releases from Guantanamo.’ And, in a complaint filed early this year, captioned Al Bihani v Trump, the Center for Constitutional Rights argues that the President is committed to a policy of no release from Guantanamo, in violation of due process and the laws of war, as well as the congressional Authorization for the Use of Military Force dating to September 2001.
‘The first issue for the courts is what constitutional protections apply to wartime detainees,’ says Lee Wolosky, former Special Envoy for Guantanamo Closure. ‘Habeas corpus obviously applies. Do other constitutional protections apply? In a war that extends for decades, whether or when due process applies are both questions of first impression.’
“We don't want to be in the forever detention business as a matter of policy, and it's increasingly evident that we can't be as a matter of law
General Counsel, The US Navy, 2001 to 2006
The Geneva Conventions and the Authorization for Military Force permit the detention of enemy combatants, to prevent them from returning to the battlefield, so long as active hostilities are ongoing. However, as the US Supreme Court noted when it interpreted these authorities in Hamdi v Rumsfeld (2004): ‘If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.’
The Al Bihani plaintiffs argue that core al Qaeda has been decimated, and has no connection to America’s new enemies in the war on terror. On the contrary, ISIS and Syria are both fighting al Qaeda. Accordingly, the plaintiffs say they face ‘perpetual detention disconnected from any legitimate purpose,’ and ‘lifetime detention based on enormously attenuated’ links to an ‘amorphous, interminable global war.’ They’ve already been detained 11 to 17 years without charge or trial. In the most poignant case, lead plaintiff Tofiq Al Bihani of Yemen was cleared for release eight years ago, as he was deemed to pose no security risk. Four others still at Guantanamo were cleared for release before President Trump took office.
‘We don't want to be in the forever detention business as a matter of policy, and it's increasingly evident that we can't be as a matter of law,’ says Alberto Mora he served as General Counsel of the Navy between 2001 and 2006.
‘It's a very thin argument to say that the war is continuing and it's the same conflict,’ says Daphne Eviatar of Amnesty International USA, which has adopted Mr. Al Bihani as a prisoner of conscience. ‘There's really no concept of a forever war under international law.’
The government responds that the war on terror is not perpetual. On the government’s reading of the law, due process does not protect Guantanamo detainees. Fourteen thousand US soldiers remain in Afghanistan (an increase of 3500 since President Trump took office). And al Qaeda fights on, says the Justice Department, never mind the question of other enemies. In deference to this line of argument, DC federal judges have stood by their conclusion that Guantanamo detention remains lawful under the 2001 military authorization and the Geneva Conventions. Indeed, the government frames early release as lawless. A ‘judicially-imposed system of fixed-term detention would undermine law of war principles,’ it says, ‘and establish an arbitrary catch-and-release system returning enemy fighters to the battlefield while the battle is ongoing.’
An executive order early this year reversed President Obama’s decision to close Guantanamo. But it formally renewed the Periodic Review Board he established in 2011 to make case by case recommendations on release to the Defense Secretary (who retains the sole power of decision). Eviatar says the Periodic Review Board is window dressing, as President Trump has appointed no envoys at the State and Defense Departments to handle detainee transfers. In practice, they’ve just ‘abandoned these men,’ she says.
In a sign that it’s planning for the long term, the Trump White House is now backing the military’s request for $69m from Congress to build a new Guantanamo prison to house the fifteen ‘highest value’ detainees as they age, replete with wheelchair ramps and hospice wing.. ‘Expanding Guantanamo to deal with its aging population, many of whom were tortured by US officials, is not the proper way to deal with the history of what the US did,’ says Eviatar. ‘It’s unconscionable as well as a tremendous waste of taxpayer money.’