By Andy Worthington, April 9, 2015
On March 30, lawyers for five Afghan prisoners still held at Guantánamo wrote a letter to President Obama and other senior officials in the Obama administration asking for their clients to be released.
The five men in question are: Haji Hamdullah (aka Haji Hamidullah), ISN 1119; Mohammed Kamin, ISN 1045; Bostan Karim, ISN 975; Obaidullah, ISN 762; and Abdul Zahir, ISN 753.
The lawyers wrote, "Their continued detention is illegal because the hostilities in Afghanistan, the only possible justification for detention, have ended. Therefore, these individuals should be released and repatriated or resettled immediately." They referred to President Obama's State of the Union Address, on January 20 this year, at which the president said, "Tonight, for the first time since 9/11, our combat mission in Afghanistan is over."
Under the heading, "The War in Afghanistan Is Over and Therefore Afghan Citizens Must Be Released," the lawyers wrote, "The government’s authority to detain our clients is based on the Authorization for the Use of Military Force ('AUMF'), passed by Congress and signed into law in the week following the attacks of September 11, 2001 … The government’s authority to detain is not indefinite. Indeed, it lasts only as long as the war in Afghanistan exists."
The lawyers then quoted Judge Sandra Day O'Connor's opinion in Hamdi v. Rumsfeld, the 2004 Supreme Court ruling establishing that the AUMF authorized the imprisonment of the men held at Guantánamo. "It is a clearly established principle of the law of war that detention may last no longer than active hostilities," Judge O'Connor wrote.
The lawyers added, "Over the last decade, the federal judiciary has acknowledged that the government’s authority to detain individuals at Guantánamo Bay will end eventually," and quoted from a variety of U.S. cases, in the D.C. Circuit Court, relating to the Guantánamo prisoners -- including Adham Ali Awad, a Yemeni prisoner, in 2010, when the appeals court judges stated, "[T]he United States’ authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities."
As well as citing President Obama's State of the Union Address, the lawyers also noted that, "on December 28, 2014, President Obama marked the end of Operation Enduring Freedom and combat operations in Afghanistan at a flag ceremony in Kabul, noting that 'thanks to the extraordinary sacrifices of our men and women in uniform, our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.' At that same ceremony, former Secretary of Defense Chuck Hagel further acknowledged the end of combat operations by American forces and the transfer of security authority to the government of Afghanistan: 'At the end of this year, as our Afghan partners assume responsibility for the security of their country, the United States officially concludes Operation Enduring Freedom. Our combat mission in Afghanistan, which began in the aftermath of the September 11, 2011 attacks, will come to an end.'"
The lawyers also noted that the statements by President Obama and Chuck Hagel "are supported by concrete steps taken by American military forces, including the significant reduction of troops stationed in Afghanistan, the transfer of control over detention facilities housing Afghan detainees at Bagram Airfield to the Afghan government, and the transfer of security control of 95 Afghan districts to the Afghan government."
They added, "Moreover, the Afghan government has requested on multiple occasions that its citizens detained in Guantánamo Bay be released. On December 22, 2014, the United States released four Afghan detainees from Guantánamo Bay and returned them to Afghanistan. Additionally, the United States has released hundreds of Afghan detainees being held at Bagram Airbase [and] the Afghan government has successfully overseen their return to civilian life. Accordingly, any concern that the release of our clients will result in their recruitment to an engagement in belligerent and militant actions against American forces is wholly unfounded. Our clients are not charged with any crime. Their detention is not penal in nature. Instead, they are being held captive subject to a military action that has concluded."
They then -- again -- cited Justice O'Connor in Hamdi v. Rumsfeld, drawing on a 1946 ruling: "Captivity is neither a punishment nor an act of vengeance … A prisoner of war is no convict … He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released."
In conclusion, the lawyers wrote, "In sum, we request that you take immediate action to release these five Afghan detainees. They have been detained without charge for over thirteen years. They have lived the last several years in isolation without any real hope that their detention will come to an end. The moral and legal deadline for their release passed long ago."
The five men are amongst the 56 prisoners -- out of the remaining 122 prisoners -- who have not either been approved for release (56 others) or put forward for trials (the other ten). One of the five, Abdul Zahir, had been charged in the very first incarnation of the military commissions under President Bush, which the Supreme Court shut down in 2006. He has not been charged again in the years since although, as the Miami Herald noted, his name was "included in a list of war crimes trial candidates drawn up by the Department of Defense late last year that surfaced recently in legal documents."
Two others -- Mohammed Kamin and Obaidullah -- were charged in subsequent versions of the military commissions, but the cases were ridiculously weak, and the cases are no longer active. In addition, Obaidullah and another of the five, Bostan Karim, had their habeas corpus petitions turned down after ideologically-motivated interference by the D.C. Circuit Court.
The other four men -- none of whom are expected to face trials -- are eligible for Periodic Review Boards, a process established in 2013 to review the cases of the men not cleared for release or facing trials. Unfortunately, the review process is disturbingly slow-moving. Just 13 reviews have taken place to date, and although eight men have been approved for release and two of the eight have been freed, there is no way of knowing how many years it might take for any of the other men -- including the Afghans -- to have their cases reviewed.
The lawyers' letter about the Afghans followed a federal court filing submitted on behalf of a Yemeni prisoner, Mukhtar al-Warafi, at the end of February. Unlike the Afghans, al-Warafi, a medic in Afghanistan whose habeas corpus petition was turned down in March 2010, was approved for release -- if security concerns could be satisfied -- by President Obama's high-level Guantánamo Review Task Force in January 2010, but, as the Miami Herald put it, he "is from violence-plagued Yemen, where the Obama administration won’t send cleared captives."
Al-Warafi's lawyers presented many of the same arguments the Afghans' lawyers put forward in their letter last week. As Shane Harris described it in an article for the Daily Beast, al-Warafi is "saying that since President Obama has declared the war in Afghanistan is over, there are no longer any legal grounds to hold him."
Harris stated that al-Warafi's court submission was "believed to be the first time a Guantánamo detainee has argued that the government’s authority to detain him evaporated with end of military operations against the Taliban." However, as he added, "when U.S. attorneys respond, they could argue that, in fact, hostilities haven’t come to a conclusion, and there are still grounds to hold the man. That could put them the strange position of undercutting the president, and arguing that just because the commander-in-chief says the war is over doesn’t necessarily make it so."
One of al-Warafi's lawyers is Brian Foster, who, with colleagues at the law firm Covington & Burling, represents prisoners accused of being involved with the Taliban as well as others accused of having some involvement with al-Qaeda. Foster said they "chose al-Warafi’s case as a first test because he was only ever named as a member of the Taliban, offering a clearer argument for why he should be set free now," as opposed to men accused of having al-Qaeda connections.
Arguments will no doubt be put forward that the conflict with al-Qaeda is ongoing, although as we at "Close Guantánamo" have always maintained, it should never be taken for granted that the US authorities' supposed evidence against the prisoners -- including claims of their supposed involvement with al-Qaeda -- is at all reliable, and in any case, as Brian Foster explained, although the legal argument for freeing men allegedly associated with al-Qaeda "is more complicated than for al-Warafi, which is why the team started with a client that had no al-Qaeda connections," assumptions about al-Qaeda must also be challenged.
As Foster pointed out, the al-Qaeda to which low-level prisoners belonged "is not the same organization" as it was back in 2001. "It has nothing to do with the people who've been in Guantánamo for 13 years," he said.
At "Close Guantánamo" we agree, and we can see no reason for any case to be made to attempt to justify the ongoing imprisonment of anyone at Guantánamo except for those who are facing trials. We urge appropriate action from President Obama, the Justice Department and the Pentagon, and hope to see further releases from Guantánamo in the very near future.