Lawyers for eight prisoners at Guantánamo detention center who have never been charged with crimes asked a federal judge Wednesday to rule that that their portion of the “forever war" has ended and it’s time to let them go.
U.S. District Judge Thomas Hogan openly questioned whether he could reinterpret higher court rulings on what laws apply to non-citizens held in offshore military detention. But he agreed with the prisoners' lawyers that Guantánamo captives have been held as long as some convicted criminals have served "very serious sentences" in the United States.
He framed the inmates' argument to say that they were trapped in a "no-man's land" or a "Catch-22," invoked England's 1337-1453 Hundred Years' War and asked a Justice Department lawyer about the limits of Law of War detention operating at Guantánamo.
"Yes, we could hold them for 100 years if the conflict lasts 100 years," Justice Department attorney Ronald Wiltsie replied.
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The Pentagon currently holds 40 prisoners at Guantánamo under Congress' 2001 Authorization for the Use of Military Force, which after the 9/11 attacks empowered the administration of President George W. Bush to destroy al-Qaida and its allies. Nine of the 40 Guantánamo prisoners are charged with war crimes; five others were approved for release with security arrangements by the Bush or Obama administration; the rest can seek release recommendations from an parole-style board every few years
But detainee attorney Baher Azmy of the Center for Constitutional Rights said the war on terror is not a traditional war that could end in al-Qaida's "unconditional surrender." He argued that the Trump administration has no plans to let anybody go and the conflict in Afghanistan has morphed into something new.
ISIS has supplanted al-Qaida as the United States' major war-on-terror foe and, he said. Azmy said that the standard for detention should change with the times to entitle the captives to invoke a "due process" argument for federal court review of their military detention.
Wiltsie repeatedly told Hogan U.S. detention authority of ISIS detainees was not currently an issue. He also noted that all eight men at issue in court on Wednesday are held as prisoners related to the initial post 9/11 conflict that began with the invasion of Afghanistan. "The initial war started in Afghanistan. It continues today," Wiltsie said. "That [the conflict] has grown is irrelevant to the ongoing detention of these petitioners."
The eight captives who asked Hogan to intervene include two Pakistanis, three Yemenis, a Saudi, a Moroccan and a Kenyan who were brought to Guantánamo between 2002 and 2007. They are held as captives of the war on terror, not suspected war criminals, so they have never been charged at a the war court's military commissions.
Wednesday, while some of their attorneys listened into the court arguments by telephone, the inmates could not. Guantánamo 's new prison warden, Col. Steven Yamashita, wrote the court that for security and logistical reasons , including just three transport vehicles for the prison's 25 low-value detainees, his guard force on the prison staff of 1,800 troops and civilians, he could not assemble them in one place to listen in.
Aren't captives not held for prosecution "in a state of limbo," the judge asked at one point.
Wiltsie replied that uncharged prisoners at Guantánamo are not being held as punishment but to prevent their "return to the battlefield."
The judge also asked about a McClatchy report that detainee lawyers had submitted for the record showing the Pentagon prison was preparing for permanent detention, questioning whether that suggested the Trump administration had a no-release policy.
Wiltsie noted there are 40 detainees currently at Guantánamo and called such planning "prudent" to be able to care for captives "for the foreseeable future."
Hogan asked specifically about one of the eight, Mohammed Abdul Malik Bajabu who was brought to the U.S. Navy base prison in 2007 as a suspected accomplice in two terrorist attacks that targeted Israelis on the same day, Nov. 28, 2002, in Mombasa, Kenya.
Wiltsie said detention authority was covered "associated forces" to al-Qaida and the Taliban at the time of the 9/11 attacks. He added that lawyers for the Kenyan could, separately, seek a traditional habeas corpus trial to argue he had no association with al-Qaida.
Bajabu has never been charged. The Miami Herald reported exclusively in 2016 that the Obama administration unsuccessfully offered him to Israel for prosecution.
The judge also asked about the two that had been cleared for release by the Obama administration — Saudi Tawfiq al Bihani and Moroccan Abdul Latif Nasir. The Obama administration had arranged for their repatriations after Trump was elected but then Secretary of Defense Ash Carter chose not to approve their transfer during the presidential transition period.
"I cannot say whether those people will be transferred," Wiltskie said, calling transfers "a very, very complex process" for men who had been approved for release with security arrangements that consider the possibility they might want to return to the battlefield.
Azmy noted that the State Department office that was negotiating transfers had been dismantled and that defense lawyers were unaware of any Trump administration effort to repatriate or resettle any of the current 40 captives, including the five who have been cleared for release.
Wiltsie said U.S. embassies can negotiate such transfers. He added that it is not currently the Trump administration's "official position" to prohibit transfers, adding that the president's Jan. 30 Executive Order canceling his predecessor's Guantánamo closure order permitted transfer "under appropriate circumstances."
Hogan replied that halting transfers had been Trump's "Twitter position" after he was elected but before he took office.