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.
For two years, the law finally applied at Guantánamo, and 38 prisoners had their habeas petitions granted by judges in the District Court in Washington, D.C., with the judges ruling that, even though a low evidentiary hurdle had been set, the government had failed to establish that the men in question had any meaningful involvement with either al-Qaeda or the Taliban.
Unfortunately, politically motivated judges in the appeals court in Washington, D.C. (the D.C. Circuit Court) took exception to these rulings, and began to undermine them. Although a majority of the 38 prisoners who had their habeas petitions granted were subsequently released, three rulings were reversed on appeal, and three others vacated, with the appeals court judges lowering the evidentiary threshold required for ongoing imprisonment, and ruling that the government’s evidence — however risible — should be treated as presumptively accurate. They also insisted, in a case called Kiyemba v. Obama, that, as explained by the attorney Tom Wilner, who represented the prisoners in their Supreme Court cases, “although the detainees may have a right to a habeas hearing, they have no constitutional right to due process of law.”
The result of all these rulings, as I explained in a page on my website providing a running tally of the habeas rulings, was that it had become “appropriate to consider that a handful of right-wing judges [were] dictating the government’s detention policies and [had] gutted habeas corpus of all meaning and remedy.”
After July 2010, no habeas rulings were decided in the prisoners’ favor, and it was particularly dispiriting that the aggressive, pro-detention arguments made by the Justice Department took place under President Obama, with no one directing them to change their stance, even when they were arguing for the ongoing imprisonment of men who had been approved for release by the Guantánamo Review Task Force, a high-level government review process that Obama established after first taking office in 2009. In addition, it was also profoundly disappointing that the Supreme Court repeatedly refused to consider any appeals relating to the D.C. Circuit Court rulings, thereby tacitly confirming that the legal ramifications of detention policy at Guantánamo had been effectively usurped by judges in a lower court.
The struggle to secure due process rights
A legal lost decade followed, in which the only chinks of light were provided by two cases in which the appointment by President Obama of new judges to the D.C. Circuit Court finally began to undo the baleful influence of the judges who had done so much to destroy habeas corpus between 2009 and 2011.
The first of these, in June 2019, was Qassim v. Trump, a case involving the Yemeni prisoner Khalid Qassim, when, as Tom Wilner, who argued the case, explained, the D.C. Circuit Court, in a ruling written by Obama nominee Judge Patricia Millett, and supported by another Obama appointee, Judge Cornelia Pillard, as well as Judge Harry Edwards, who was appointed by Jimmy Carter in 1980, “reversed an eight-year rule that has prevented Guantánamo detainees from seeing and rebutting the evidence purportedly justifying their detentions.” It was part of a ruling in which the judges granted Qassim’s request to reverse the District Court’s denial of his petition for habeas corpus, sending it back to the lower court “to conduct Mr. Qassim’s habeas proceeding in accordance with procedures that would afford him a ‘meaningful review’ of the basis for his detention.”
Unfortunately, however, Qassim’s case then disappeared from sight — perhaps waiting for someone in the District Court to pick it up — although in May 2020 Judge Millett wrote the majority opinion in another case, Ali v. Trump, involving Abdul Razak Ali, an Algerian, in which the court, as New York Times columnist Linda Greenhouse explained, “held that the district court had been right to reject the inmate’s habeas petition, but wrong to do so categorically. Judge Millett noted that while ‘circuit precedent has not yet comprehensively resolved’ the question, ‘the district court’s decision that the Due Process Clause is categorically inapplicable to detainees at Guantánamo Bay was misplaced.’”
Although this was a perfectly reasonable ruling, it provoked fury from the veteran habeas-hating judge on the panel, Judge A. Raymond Randolph, who played a major role in a number of the earlier rulings that undermined Boumediene v. Bush. Judge Randolph, as Greenhouse explained, “refused to sign Judge Millett’s opinion, accusing her of ignoring what he insisted was clear Supreme Court precedent that made the due process guarantee unavailable to ‘a nonresident alien enemy detained by the United States outside of our sovereign territory.’”
Moreover, in September 2020, Judge Randolph was part of a panel led by Trump appointee Judge Neomi Rao, in Al Hela v. Trump, a case involving Abdulsalam al-Hela, a Yemeni businessman and politician allegedly involved with al-Qaeda, in which, responding to Al Hela’s claim that “the government’s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process,” Judge Reo stated, “we reject Al Hela’s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.”
Greenhouse added that, “A footnote to her opinion contained the astounding assertion that ‘our court has adhered to Eisentrager’s holding [the World War II ruling relied upon by opponents of due process at Guantánamo] that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.’”
The third judge, Judge Thomas Griffith, who has subsequently retired, issued a separate opinion, in which he pointed out that “we have never made such a far-reaching statement about the Clause’s extraterritorial application,” but as Greenhouse added, “The objection was fruitless.”
Bringing the story up to date, the Al Hela ruling has now been appealed, and will be heard by the full en banc court on September 30, and this, as Linda Greenhouse explained in her most recent column about Guantánamo, on May 6, is significant, because, as she described it, “there is every reason to suppose that the reargued case will come out differently. Simple math suggests as much. Of the nine judges who voted on whether to rehear the panel decision (the actual vote was not disclosed) six were appointed by Democratic presidents” — and Judge Randolph, mercifully, cannot take part, because he took senior status in 2008, and senior judges “may not sit on cases heard ‘en banc’ by the full court.”
While we await the Al Hela hearing in the D.C. Circuit Court, Ali v. Trump (now Ali v. Biden) is on its way to the Supreme Court, although, because of Trump’s nominations (and Republicans’ shameful blocking of Merrick Garland’s nomination under President Obama) that court is now far to the right of where it stood at the time of Boumediene.
Worryingly, however, as Just Security explained in an article on April 21, the Biden administration has shown no signs of recognizing that it could — and should — use the Ali case “to distance itself from the Trump administration’s categorical rejection of due process rights for detainees held at Guantánamo.” Instead, Biden’s Justice Department is “urging the Supreme Court to deny review of the petition filed in Ali,” defending sweeping and long-established detention policies that are at odds with their stated intention of closing the prison before Biden’s presidential term comes to an end.
Sadly, it may be appropriate to conclude that, as with Obama before him, President Biden is fundamentally unwilling to challenge Guantánamo in the courts, and prefers, instead, as noted in the Ali filing, that the “administrative and discretionary Periodic Review Boards (PRBs) conduct a ‘future threat’ assessment that satisfies the Due Process Clause.” This can be seen in the recent decision by the PRBs — a parole-type process established under President Obama, which led to 36 prisoners being released in his last three years in office — to approve three prisoners for release, but as Jonathan Hafetz, Scott Roehm and Hina Shamsi explained in the Just Security article, “PRBs are no substitute for judicial review with constitutional safeguards and they do not adequately take into account the experiences of torture and trauma survivors in particular.”
As they proceeded to explain, the government’s opposition in Ali “will also make closing Guantanamo harder,” and they cited the recent letter to President Biden by 24 Democratic Senators, urging him to close the prison, in which the lawmakers stated, “if the Justice Department were not to oppose habeas petitions in appropriate cases, those detainees could be transferred more easily pursuant to court orders.” As the authors of the Just Security article noted, “That is because current law requiring the Defense Secretary to make a series of mostly security-related certifications prior to a foreign transfer does not apply to court-ordered releases.” They added, “Indeed, given current congressional restrictions on transferring detainees, it is hard to see why the Biden administration would continue to resist giving the judiciary — which is not bound by those restrictions — the ability to rigorously test the evidence against the detainees and, where appropriate, to order their release or facilitate their transfer.”
Ending the war in Afghanistan
However, it is not only in Ali that the Biden administration’s reluctance to follow the Senators’ advice is becoming apparent. When President Biden announced, in April, his intention to end the war in Afghanistan by the 20th anniversary of the terrorist attacks on September 11, 2001, lawyers were emboldened to tell federal judges “that whatever wartime legal authority the government had to detain their clients was evaporating,” as Charlie Savage and Carol Rosenberg explained for the New York Times.
Khalid Qassim’s lawyers were first, when they “sought a judge’s permission to expand his existing habeas corpus lawsuit to include the new argument that with Mr. Biden’s ‘announced end to the involvement of United States troops in active combat in Afghanistan, there can no longer be any legal basis’ to keep detaining him.”
They were followed by lawyers for Asadullah Haroon Gul, one of the last two Afghans in Guantánamo. Gul’s ongoing imprisonment is already inexplicable. He is accused of having aided Hezb-i-Islami Gulbuddin (HIG), a paramilitary group which, at time of the US-led invasion in October 2001, was allied with al-Qaeda. However, HIG’s leader, Gulbuddin Hekmatyar, made peace with the government in Kabul in September 2016, and now serves on Afghanistan’s High Council for National Reconciliation, and, since the peace deal, hundreds of HIG members have been freed from Afghan prisons, and a former HIG prisoner, released from Guantánamo to the UAE in 2016, was repatriated as part of the ongoing reconciliation between Hekmatyar and the Afghan government. In addition, earlier this year, the Afghan government submitted an amicus brief on Gul’s behalf, calling for his release — the first time that a foreign government had petitioned a US court for the release of one of its citizens.
However, an end to the war in Afghanistan may not mean an end to the conflict with al-Qaeda, which, the government still seems to insist, is both global and apparently unending. At his habeas hearing last month, attorney Tara Plochocki, representing a legal team “comprising people from human rights group Reprieve and the Lewis Baach Kaufmann Middlemiss law firm,” as the Washington Post explained, told the court that Gul was “a prisoner of war” in “a war that has been over for many years,” and that, “If the rule of law means anything, [he] must be released.”
However, prosecutor Stephen McCoy Elliott responded by claiming that, although the government “does not take lightly the fact that [Gul] has been detained more than 10 years,” we “have been and remain at war with al-Qaeda,” and that, as a result, his “detention, while lengthy, remains justified,” thoroughly undermining the HIG peace deal, and indicating that, at Guantánamo, as is so often the case, the basis for prisoners’ continued imprisonment works to its own horrible logic, which has nothing to do with external reality.
In her statement to the court, Tara Plochocki said that the fact that he remains imprisoned has “gotten ridiculous,” and pointed out that he is one of about 20 men still at the prison “who have not been and never will be charged with a crime.”
Addressing the court, she noted how, as the Post described it, “After HIG laid down arms, US authorities shifted their justification for detaining Gul to his alleged support for al-Qaeda.” As the Post also put it, “She mused whether their position was because ‘the policy of opposing detainee release in court is so entrenched.’”
For his part, Gul “denie[d] being a member of al-Qaeda, and Plochocki described a prisoner whose values seemed at odds with the extremist group’s ideology, noting that Gul ‘strongly believes in girls’ education.’” In a statement made to his lawyers in a phone call from Guantánamo, Gul “thanked the court and said, ‘I am not a terrorist. I am an Afghan.’” Plochocki told the court that he “asked to be sent home to raise his daughter and asked for his release ‘not just for me, [but because] I need the law to mean something, and America does, too,’” and added, “I have to say I agree with him.”
The other Afghan still held is Muhammad Rahim, described by the US authorities as “a courier and facilitator for Al Qaeda — including for Bin Laden — who had advance knowledge of the Sept. 11 attacks,” as the New York Times explained, although it is noticeable that he has never been charged with a crime.
The Times added, “If the evidence is strong that Mr. Rahim worked directly for Al Qaeda, the government can argue that wartime authority continues to exist to hold him to prevent him from returning to the fight, even if the warfare involving the United States in Afghanistan is over. But his lawyer, Cathi Shusky, a federal defender in Ohio, argued that the evidence was weak.”
As the Times proceeded to explain, “‘There’s a reasonable explanation he wasn’t part of either’ Al Qaeda or the Taliban, said Ms. Shusky, who said many of the details of his case were classified, preventing her from elaborating,” although she added, “There is some twisting of the narrative. I think when the facts are fully revealed, it will show his continued detention is not lawful.”
At his Periodic Review Board hearing in 2016, his military representative said that he “regretted his past and wanted to return to his two wives and seven children in Afghanistan,” adding, “His motivations were not ideological”; instead, “he only did what he did for money, so he could feed his family.” Although his habeas petition has been on hold for many years, in the futile hope that a PRB would recommend his release, Shusky “said she and another lawyer were planning to revive [it] in light of the decision to pull out of Afghanistan.”
The shameful case of Mohammed al-Qahtani
The other ongoing case that is now in Biden’s hands is that of Mohammed al-Qahtani, who has severe psychological problems, but who, nevertheless, was subjected to a gruelling torture program at Guantánamo in 2002, when the US authorities regarded him as the intended 20th hijacker for the 9/11 attacks.
Last March, US District Judge Rosemary Collyer granted a request by al-Qahtani’s lawyers “to compel the United States to apply an Army regulation [AR 190-8] designed to protect prisoners of war and to create ‘a mixed medical commission’ made up of a medical officer from the US Army and two doctors from a neutral country chosen by the International Committee of the Red Cross and approved by the United States and Saudi Arabia,” as Carol Rosenberg explained for the New York Times.
That decision was upheld In August by Judge Ellen Huvelle, who was assigned the case after Judge Collyer’s retirement. In response, however, on January 11 this year (the 19th anniversary of the opening of Guantánamo), “the Secretary of the Army issued a stunning memorandum,” as Just Security explained, “providing that AR 190-8 ‘is not applicable to any [Guantánamo] detainee,’ regardless of the nature of his claim and notwithstanding any court order to the contrary (Mr. al-Qahtani’s included).”
In their more recent article, Jonathan Hafetz, Scott Roehm and Hina Shamsi noted that, on March 25, the eve of the Biden administration’s first filing deadline in Al-Qahtani v. Biden, the government asked for an extension “to allow new officials to appropriately consider and assess the issues and arguments raised in and related to Petitioner’s opposition to the Motion for Reconsideration.” They noted that this “seemed like a potentially promising sign, at least until the government’s brief in Ali,” and proceeded to declare, “How to proceed in Al-Qahtani should be an easy call. The Biden administration should do the right thing, stand down, and transfer Al-Qahtani. The government does not contest the severity of Mr. Al-Qahtani’s mental illness, and Saudi Arabia would accept his repatriation. If it refuses to do so, the administration must provide the easy and humane medical evaluation to which he is entitled, and then transfer Mr. Al-Qahtani if the independent medical experts who would conduct that evaluation determine that repatriation is warranted.”
They also explained that the January memo must be rescinded, and concluded, appropriately, with a declaration that, although “[n]o one thinks closing Guantánamo and putting an end to indefinite military detention will be easy,” it “is not an intractable problem,” but first of all “the Biden administration needs to stop standing in its own way,” an opinion with which I wholeheartedly agree.
I wrote the above 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.