WASHINGTON — The U.S. has the authority to keep prisoners locked up at the Guantanamo Bay detention camp for a century without charging them with a crime, as long as the U.S. keeps fighting terrorist groups like the Taliban, al Qaeda or its affiliates, the Trump administration argued in federal court on Wednesday.
According to the administration, it is impossible to put a time limit on how long the men at Guantanamo will remain imprisoned— some of them have already been held for more than 16 years without charge — because it’s impossible to know how long the fight against various terrorist groups will continue.
Senior U.S. District Judge Thomas Hogan asked what the government would do if the conflict lasted 100 years. Justice Department lawyer Ronald Wiltsie responded, “Yes, we could hold them for 100 years.”
The court hearing in Washington was part of a joint habeas effort by 11 Guantanamo prisoners to argue that their perpetual detention is arbitrary and unlawful, based on President Donald Trump’s past statements and his government’s dismantling of the office that was put in place to transfer detainees out of the prison. (Hogan is overseeing the proceedings for eight of the 11 men.) Unless the court orders their release, the petitioners argue, they are likely to be stranded at Guantanamo for at least the duration of Trump’s presidency. For some of the older detainees, that could be the rest of their lives.
Under the international law of war, it is legal to imprison enemy combatants without charge as a way of keeping them off the battlefield without killing them. But the presumption is that they will be released after the war ends.
The current fight against terrorist groups is “totally disconnected” from the nature of the conflict after the Sept. 11, 2001, attacks ― when the men at Guantanamo were taken into custody ― Center for Constitutional Rights legal director Baher Azmy argued on Wednesday. And releasing the Guantanamo detainees wouldn’t really risk replenishing enemy forces. There are only 40 prisoners left and they can only be released to countries that are relatively stable and whose governments agree to monitor them closely.
Weeks before Trump took office, he tweeted that no one should be let out of Guantanamo. But his administration, likely following the advice of its lawyers, has been careful not to explicitly embrace a policy of indefinite detention. Trump’s executive order on Guantanamo reversed his predecessor’s order to close the prison while keeping in place the periodic review boards ― parole-style hearings that can, theoretically, result in a detainee’s release.
In practice, however, it has become the Trump administration’s “de facto policy” to transfer no one out of Guantanamo, Judge Hogan noted on Wednesday.
Nobody has been cleared for release by a periodic review board under the Trump administration. The government has likewise made no effort to transfer the five men who were already cleared before Trump became president, Wiltsie acknowledged on Wednesday.
Two of the cleared detainees, Moroccan Abdul Latif Nasser and Saudi Tofiq Nasser Awad al-Bihani, are part of the joint habeas effort. “They are in a no man’s land,” Hogan said, referring to the fact that they are no longer subject to any type of review process but are also not being freed.
Wiltsie said he could not say whether Nasser or al-Bihani would ever be transferred out of the prison.
The only detainee who has left Guantanamo under Trump is Ahmed al-Darbi, a Saudi citizen who was released into Saudi custody as part of a legally binding plea deal negotiated years ago in exchange for pleading guilty to war crimes.
“What do we tell our clients?” asked Azmy, who argued on behalf of the detainees on Wednesday. “Confess to war crimes?”
The detainees who are part of the habeas motion had asked permission to listen to a live audio transmission of the hearing from Guantanamo. The military denied the request, claiming it would “adversely impact security.” Instead, the eight men whose cases were being considered on Wednesday are supposed to receive an audio playback or transcripts of the oral arguments.
“The government says my detention is legal because of the indefinite war against terrorism. When terrorism ends, the war will end. So, never,” Sharqawi al-Hajj, a 43-year-old Yemeni who joined the motion, said in a statement. Al-Hajj has been on a hunger strike to protest his imprisonment.
“I feel like I am dead but still breathing,” al-Hajj continued. “Show me how I can convince you that I don’t pose a threat to anybody. Just show me the way and I will follow it.”