By Andy Worthington, August 6, 2015
Back in March, as I explained in an article at the time, lawyers for five Afghan prisoners still held at Guantánamo wrote a letter to President Obama and other senior officials in the Obama administration, in which they sought their release, on the basis that, as the lawyers put it, "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.”
In my article, I also mentioned a federal court filing submitted on behalf of a Yemeni prisoner, Mukhtar al-Warafi, at the end of February calling for his release for similar reasons. I stated, "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."
As I also discussed recently, al-Warafi was approved for release by President Obama's high-level, inter-agency Guantánamo Review Task Force in January 2010, but had his habeas corpus petition subsequently challenged by the Justice Department, in an example of a lack of joined-up thinking within the government. Al-Warafi's habeas petition was subsequently turned down by a judge in March 2010.
Since my article in April, another prisoner, Fayiz al-Kandari, the last Kuwaiti held at Guantánamo, also sought his release because of the end of hostilities. As the Associated Press described it in an article in June, "In a court filing, lawyers for al-Kandari wrote that 'there is no longer a battlefield in Afghanistan in which the United States is sustaining active combat operations. Accordingly, there is no longer a basis under the international laws of war to detain' their client."
The detention of the Guantánamo prisoners is based on the Authorization for Use of Military Force, passed by Congress within days of the 9/11 attacks. The AUMF authorized the president to pursue anyone he regarded as being connected to the 9/11 attacks, and in June 2004, in Hamdi vs. Rumsfeld, the Supreme Court ruled that detentions based on the AUMF were legal, but only as long as "active hostilities" continued.
Looking at al-Warafi's case as well as al-Kandari's, the AP explained how defense lawyers have pointed out that, even prior to his State of the Union Address, President Obama "unequivocally signaled an end to the military conflict when, on Dec. 28, he declared that 'our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.'"
However, as the AP put it, "the Justice Department says 'active hostilities' clearly persist against the Taliban and al-Qaeda, and that Obama never suggested that all military and counterterrorism operations would be coming to an end."
In April, in a reply in al-Warafi's case, government lawyers stated, "Simply put, the president's statements signify a transition in United States military operations, not a cessation."
Eugene Fidell, who teaches military justice at Yale Law School, said, "Presidents say things," and, in the AP's words, "recalled President George W. Bush's celebratory Iraq War speech in 2003, delivered from the deck of an aircraft carrier under a 'Mission Accomplished' banner."
"Well, the mission wasn't accomplished," Fidell said. "Perhaps some presidential statements of fact have an aspirational flavor."
Steven Vladeck, a national security law professor at American University, acknowledged, however, that "[t]he lawyers for the detainees are asking the right questions. And what's really interesting is that the government can't quite seem to figure out its answer." Vladeck added that "the real question is not whether the government is going to win this round, but how." He predicted that "[t]here's going to be some skepticism from the judges about the inconsistencies in the government's position and its limitlessness."
In the end, the first decision, in al-Warafi's case, delivered on July 30, came down in the government's favor. As the New York Times described it, Judge Royce C. Lamberth of the District Court in Washington D.C. ruled that the U.S. military "may continue to hold a Guantánamo Bay detainee accused of being a Taliban fighter even though President Obama has repeatedly said that the United States’ war in Afghanistan has ended."
The 14-page ruling, the Times added, "was a rare judicial attempt to resolve legal questions that may have implications for years to come -- including how a war against a loose-knit organization of terrorists and their splintering, morphing allies can come to a definitive end, and who decides whether it has done so."
Judge Lamberth, as the Times put it, "ruled that regardless of what Mr. Obama has said about the status of the war in Afghanistan, there continues to be fighting between the United States and the Taliban. As a result … the government retains the legal authority to detain enemy fighters, including Taliban members, to prevent them from returning to that fight."
Judge Lamberth stated, "A court cannot look to political speeches alone to determine factual and legal realities merely because doing so would be easier than looking at all of the relevant evidence. The government may not always say what it means or means what it says."
For Mukhtar al-Warafi, this must be a bitter blow, as it was Judge Lamberth who refused to grant his habeas petition back in March 2010.
As the Times explained, al-Warafi's lawyers "argued that Mr. Obama had the power to decide when the war was over, and his public comments showed that the government’s legal authority to detain suspected Taliban prisoners had expired. The Justice Department agreed that Mr. Obama had the power to decide when it was over, but submitted a letter to the court in which Mr. Obama had said that the armed conflict in Afghanistan, including against the Taliban, continued." In response, al-Warafi’s lawyers "said the Obama administration was trying to go back on the president’s previous pronouncements."
Judge Lamberth, however, ruled that "both sides were wrong in saying that it was up to the president alone to say whether a war was over for legal purposes." He said that the courts "had to independently determine whether fighting was still going on, regardless of political speech."
The Times noted that Judge Lamberth’s reasoning "implied that someday, a court could rule that the war was over and require that detainees be freed, even if the president at that time disagreed." However, David Remes, one of his lawyers, "expressed disappointment, in part because the existence of 'fighting' as triggering wartime detention powers is a lower standard than a full-blown 'armed conflict.'"
Remes said that the ruling "seemed to endorse the idea of a limitless forever war under which the government can continue to hold men for as long as there is 'fighting.'"
The Guardian added that Brian Foster "said the judge’s opinion amounted to a 'rubber stamp for endless detention.'" He added that "he would review the opinion and decide whether to appeal."
Please also see below a cross-post of an op-ed for Al-Jazeera by another Guantánamo prisoner, Moath al-Alwi (aka Muaz al-Alawi) asking, "If the war is over, why am I still here?"
I hear the war in Afghanistan is over.
This war was supposedly the reason I remained trapped, rotting in this endless horror at Guantánamo Bay. I write this letter today to ask, if this war has ended, why am I still here? Why has nothing changed?
Amid falling bombs and mass hysteria, I fled Afghanistan for safety when the U.S. launched its military operations in 2001. I was abducted despite never fighting against the United States, was sold into U.S. military custody, and then imprisoned, tortured, and abused at Guantánamo since 2002 without ever being charged with a single crime.
I protest this injustice by hunger striking, refusing food and sometimes water. One of Guantánamo's long-term hunger strikers, I am a frail man now, weighing only 96 pounds (44kg) at 5'5" (1.68m).
Recently, my latest strike surpassed its second year. My health is deteriorating rapidly, but my intention to continue my strike is steadfast. I do not want to kill myself. My religion prohibits suicide. But despite daily bouts of violent vomiting and sharp pain, I will not eat or drink to peacefully protest against the injustice of this place. My protest is the one form of control I have of my own life and I vow to continue it until I am free.
I remain on lockdown alone in my cell 22 hours a day. Despite my condition, prison authorities unleash an entire riot squad of six giant guards to forcibly extract me from my cell, restrain me onto a chair and brutally force-feed me daily. They push a thick tube down my nose until I bleed, after which I vomit.
This gruesome procedure may not be written about so much any more, but it remains my everyday reality. It is painful. And it is bewildering. How can I possibly resist anyone, let alone these men? Hunger striking is a form of peaceful and civil disobedience. It is not a crime. So why am I being punished? Why not humanely tube-feed me instead?
My time here has been ridden with unanswered questions. Two years ago, as I attempted to pray, a sudden raid was ordered and a guard deliberately shot me without warning or provocation. Once again, I was not resisting. So why did he shoot? My clothes, torn, were soaked in my own blood. I want the government to ask the guard who shot me to account for his actions.
I began to wonder if shooting without any provocation is legal in the U.S. But now I realise that U.S. police officers get away with ruthlessly killing black people all the time.
I wonder now if the U.S. follows any rule of law at all: the Geneva Conventions or even its own Constitution. Where is the freedom and justice for all that it so proudly boasts to the world?
For us at Guantánamo, this place is not fit for any living, breathing, human being. The U.S. seems to want to smother us, to kill us slowly as we are left in a vacuum of uncertainty wondering if we will ever be free.
I have lived the past 13 years in this despair, at the cost of my dignity, paying the price for the U.S. government's political theatre. Meanwhile, little has changed for the 122 men [note: now 116] remaining at Guantánamo.
The world may turn a blind eye and find this number small. But for each of us here, the cost of our indefinite and unfair imprisonment is beyond immeasurable. Our families have lost fathers, brothers, husbands, and sons to this hell on earth. Many of us have unnecessarily lost over a decade of our already short time in this world, yearning to be free again.