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Trump May Try To Keep Guantánamo Open, But Legal Challenge Could Derail Lawless Agenda

President Donald Trump urged Congress during his “State of the Union” address to grant his administration the “necessary power to detain terrorists wherever we chase them down, wherever we find them.” He added, “In many cases for them, it will now be Guantánamo Bay.”

He announced an executive order to “revoke” the closure of detention facilities at the notorious U.S. military prison and transport additional detainees to the facilities.

Forty-one detainees remain confined at Guantánamo, since they were transferred there under President George W. Bush.

The Trump administration did not transfer any alleged terrorism suspects to Guantánamo in its first year, however, the executive order and remarks during the “State of the Union” reaffirms the administration’s commitment to flout human rights and disregard the rule of law.

The Center For Constitutional Rights (CCR), which has several attorneys who have represented detainees, reacted, “Trump has made no secret of his intention to keep Guantánamo open, touting it as far back as the 2016 presidential campaign, despite both the Bush and Obama administrations’ recognition that the prison should be closed for moral, national security, and diplomatic reasons.”

CCR attributed the Trump administration’s commitment to Guantánamo to “deep-seated racism,” “antipathy toward all Muslims,” and the fact that the “Trump White House is stacked with white supremacists who are blinded to reason by ignorance and bigotry.”

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, declared, “In trying to give new life to a prison that symbolizes America’s descent into torture and unlawful indefinite detention, Trump will not make this country any safer,” and added, “We all must pledge—not one person more in Guantánamo, not in our names.”

Reprieve, a human rights organization that has provided legal defense to detainees, asserted, “The new executive order is expected to leave the remaining men in limbo indefinitely, with no access to any means of proving their innocence or returning to their families.”

“Among those still detained in Guantánamo is Reprieve client Towfiq Bihani, who has been held in the illegal prison since early 2003,” a statement noted. “Towfiq has never been charged with a crime, and has been officially cleared for release through a rigorous process requiring the unanimous agreement of six U.S. security and defense agencies. Prison authorities prepared him for release three times, going so far as to provide him with his ‘release clothing.’ Despite this, Towfiq remains detained.”

As CCR contended, an executive order does not necessarily make it legal to keep 41 individuals arbitrarily detained at a U.S. military prison. It could meet the same fate that the administration’s Muslim bans and ban on transgender people serving in the military encountered in the courts.

Both CCR and Reprieve came together on the 16th anniversary of Guantánamo’s opening to challenge Trump’s unlawful and arbitrary detention of individuals that they said amounts to “perpetual detention for detention’s sake.”

They did so on behalf of 11 men, whose “detention has spanned three presidential administrations and as many as five presidential terms.”

“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.”

It argues the men may never leave the military prison without judicial intervention and that the due process clause of the Constitution prohibits perpetual detention “disconnected from a legitimate purpose.” It is especially arbitrary for any individuals already cleared for transfer.

The challenge also argues the Authorized Use of Military Force, which the U.S. government has invoked to justify and excuse any military action since 2001, cannot support further detention of individuals.

“The traditional law-of-war understanding that may have justified detention in 2004 has ‘unraveled,’ as the ‘practical circumstances’ of the conflict with al-Qaida have long ceased to resemble any of the conflicts that informed the development of the law of war,” the lawsuit contends. The “battlefield” is “today no more than an amorphous interminable morass, global in scope, that could justify [detainees’] lifetime imprisonment if left unchecked.”

Not only does the executive order signal a reaffirmed commitment to transferring new prisoners to Guantánamo, but it also maintains a supremely dysfunctional U.S. military commissions system that has proven itself incapable of even completing the trials of terrorism suspects allegedly responsible for the September 11th attacks.

Additionally, journalist Carol Rosenberg reported the U.S. military plans to demolish the “first communal, prison-of-war style prison,” at Guantánamo.

Known as Camp Four, it opened in 2003 and was the “first place” where detainees were able to “eat and pray together, kick around a soccer ball, and take classes.” It was the first space where detainees could “walk unshackled” outdoors in a recreational space. Confinement there was once viewed as a perk for “cooperative captives.”

If Trump brings more individuals to Guantánamo but the military moves to do away with any confinement conditions that are “soft” on captives, that certainly could return the U.S. military prison to its most darkest days in the early 2000s.

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Part of the responsibility for Guantánamo remaining open so Trump could still try to utilize it lies with President Barack Obama’s administration.

The Obama administration relied upon a fairly elastic definition for what it meant to be a “part of” al-Qaida. It championed a criteria supported by the District of Columbia Circuit Court during habeas cases, where the actions or pattern of behavior of an individual fuels the determination of whether detention is lawful. Officials did not find it necessary to have evidence an individual operated within al-Qaida’s “command structure” to show they were “part of” the organization and could be legally detained.

Forty-eight captives were designated as “too dangerous to transfer but not feasible for prosecution.” They were sometimes referred to in the press as “forever prisoners.” Thirty captives were designated for “conditional” detention because they were from Yemen, and the administration refused to return them to their home country.

The Obama administration left an indefinite military detention regime intact for Trump. Unless prisoners were in the news for hunger strikes or there were further revelations of torture and abuse, the Obama administration said the bare minimum to persuade the public that Guantánamo should shut down. That left a vacuum for right-wing politicians to come in and whip up xenophobia to stymie closure.

That said, there is a bloodlust and even more brazen lawlessness to Trump’s desire to restore detention operations at Guantánamo, which never existed in the Obama administration. The cost of failing to close Guantánamo may be that more men, including innocent men, are tortured, abused, and consigned to a terrible life as another one of America’s “forever prisoners.”

BNSF oil train. Photo by Raymond Shobe (bossco) on Flickr.
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."