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Trump Administration Argues It May Detain Captives At Guantánamo Until Fighting Stops In Afghanistan

President Donald Trump’s administration responded to a legal challenge that alleges the continued detention of detainees at the Guantánamo Bay military prison amounts to “perpetual detention for detention’s sake.” Officials maintain detention is allowed “until the fighting stops” in Afghanistan.

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

The government replied to the legal challenge from the Center for Constitutional Rights (CCR) and Reprieve by asserting that detention is not “indefinite” but “indeterminate.”

“Because the end of hostilities cannot be predicted—does not render the detention ‘perpetual’ or unconstitutionally ‘indefinite,'” the Trump administration declares. It serves a “permissible purpose”—”to prevent the return of members of enemy forces to the battlefield.”

CCR and Reprieve argues the Authorized Use of Military Force (AUMF), 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 “battlefield” is “today no more than an amorphous interminable morass, global in scope, that could justify [detainees’] lifetime imprisonment if left unchecked.”

The Trump administration attempts to rebut this argument in their filing by describing recent operations in Afghanistan as part of the North Atlantic Treaty Organization’s “Resolute Support” mission and a U.S. mission, “Operation Freedom’s Sentinel.”

“In August 2017, the President announced an increase of in the number of U.S. military personnel in Afghanistan along with expanded authorizations for U.S. forces to engage enemy forces. The United States currently maintains approximately 14,000 military personnel in Afghanistan, an increase of approximately 3,500 military personnel since early 2017.”

“From June 1, 2017, to November 24, 2017, United States special operations forces components conducted 2,175 ground operations and 261 kinetic strikes in which they enabled or advised Afghan forces. In 2017, the United States conducted over 1,248 air sorties with at least one weapon release and fired more weapons during aerial missions (4,361) than in any year since 2012,” the government adds.

The Trump administration acts like human rights attorneys do not believe the U.S. is at war with al-Qaida in Afghanistan anymore. That is not CCR and Reprieve’s argument.

Rather, the attorneys contend, “The limited purpose for which the laws of war may have authorized their detention at Guantánamo to prevent return to the battlefield has long since faded more than 15 years after their capture. The conflict against the core al-Qaida organization in connection with which they were captured has ended and been taken over by disparate battles involving new groups.”

“The battlefields in which they were captured, if any, are no more, thus dissolving the only legitimate purpose of their detention. The baseless and arbitrary nature of these detentions is particularly clear in the case of petitioners the government has approved for transfer and effectively conceded there is no reason to continue to detain.”

Nevertheless, lawyers for the Justice Department try to scare the court by suggesting a ruling in support of Guantánamo detainees would “result in a judicially-imposed system of fixed-term detention that would undermine longstanding law-of-war principles and establish an arbitrary catch-and-release system in which enemy fighters could return to the battlefield while fighting remains ongoing. It is not open to this court to create such a regime.”

Abdu Latif Nasser and Tofiq Nasser Awad al-Bihani are both cleared for release. The Trump administration justifies their indefinite detention by blaming the Morocco government for taking a long time to provide “security assurances” to the Pentagon so Nasser could be transferred. Secretary of Defense Ash Carter never made a “final decision” on transfer so that is why he is still at Guantánamo.

Al-Bihani was one of 30 Yemenis who President Barack Obama’s administration designated for “conditional detention” because of instability and war in Yemen. Carter declined to sign off on al-Bihani’s transfer.

No part of the filing from the Trump administration addresses why the two detainees are eligible for transfer but not free today. The government cites developments from over a year ago ignoring the fact that officials at the Pentagon have had plenty of time to reassess concerns or issues that prevented transfer.

None of the detainees released under Obama were transferred to Afghanistan, even if they were Afghan citizens. They were put under surveillance or supervision by the governments that resettled them so they would not go fight U.S. troops in Afghanistan.

The legal challenge specifically details how al-Bihani has been detained for eight years since the government determined he could be released. Al-Bihani was apprehended in Iran, not Afghanistan, and was suspected of affiliating with al-Qaida. He was held at a CIA “black site” prison and tortured. Al-Bihani was later transferred to Guantánamo in February 2003.

Although he was a Yemeni designated for “conditional detention,” the State Department under Obama attempted to identify a country that would accept him. Twenty-nine other Yemeni detainees were transferred to “third countries” before Obama’s administration ended. But even though Saudi Arabia agreed to resettle al-Bihani, he was not released.

“To date, the government has not indicated any reason why al-Bihani was not transferred, or why he should not be transferred consistent with the process and standards in place by the executive branch and the treatment of every other similarly situated detainee. Since President Trump took office, al-Bihani’s counsel has made several attempts to speak to the administration, including the Department of State, but has not received any concrete guidance or information with regard to al-Bihani’s transfer.”

“There have been no indications that the Trump administration has made any meaningful effort to transfer al-Bihani despite his cleared status,” the legal challenge indicates.

As for Nasser, he was approved for transfer in July of 2016. The Obama administration failed to take appropriate action to release him.

“Now, almost ten months later, no review has taken place, nor has the Department of Defense instituted any procedural mechanism for such review to take place. Bureaucratic inaction now means that Nasser is sentenced to lifetime detention under the Trump administration absent a court order.”

The legal challenge concludes, “The current executive’s open hostility to transferring any detainees, no less those already administratively cleared for transfer, cries out for principled and courageous judicial intervention.”

Finally, the Trump administration claims there are no due process issues because each detainee was granted an administrative hearing before the Periodic Review Board (PRB), an extralegal military system setup largely outside the purview of the judicial branch.

Katie Taylor, deputy director of Reprieve, reacted, “The Trump administration’s position is typical of the logical and legal vacuum of Guantánamo. On one hand, Trump’s lawyers argue the Periodic Review Board is an adequate protection from arbitrary detention, though not a single person has been cleared by the PRB since he took office. On the other hand, they argue the five men, including Abdul Latif Nasser and Towfiq al-Bihani, previously cleared for release by six federal agencies can continue to be detained forever.”

“And in the latest example of Guantánamo nonsense, we are now told that detention at Guantánamo is not indefinite, but rather ‘indeterminate’, as if that somehow makes all the difference to the 31 men who remain locked up without charge or trial.”

Kevin Gosztola

Kevin Gosztola

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