[Pnews] Guantánamo and the U.S. Courts: When Is A War Not Over? Apparently, When It’s the “War on Terror”

[Prisoner News]

closeguantanamo.org
<https://www.closeguantanamo.org/Articles/414-Guantanamo-and-the-U.S.-Courts-When-Is-A-War-Not-Over-Apparently-When-Its-the-War-on-Terror>
Guantánamo and the U.S. Courts: When Is A War Not Over? Apparently, When
It’s the “War on Terror”
------------------------------

A photo of Khalid Qassim, taken in Guantánamo at least 15 years ago.

By Andy Worthington, April 5, 2023

Originally posted on Andy Worthington's website
<https://www.andyworthington.co.uk/2023/04/04/guantanamo-and-the-u-s-courts-when-is-a-war-not-over-apparently-when-its-the-war-on-terror/>
.

It’s a sign of the fundamental lawlessness of Guantánamo that, 19 months
since the United States decisively brought to an end its nearly 20-year
military presence in Afghanistan by withdrawing all its troops, a
Guantánamo prisoner — who is not alleged to have been anything more than a
foot soldier for the Taliban at the time the 9/11 attacks and the
subsequent U.S.-led invasion of Afghanistan — is fighting in a U.S. court
to try to get a judge to recognize that, given the definitive end to the
U.S.’s involvement in hostilities in Afghanistan, he must be freed.

The prisoner in question is Khalid Qassim (aka Qasim), a Yemeni who has
been held for nearly 21 years without charge or trial at Guantánamo, and is
still held, even though, last July, a Periodic Review Board (a parole-type
review process introduced by President Obama) approved him for release
<https://www.andyworthington.co.uk/2022/07/26/joy-as-the-talented-artist-khaled-qassim-is-approved-for-release-from-guantanamo-but-when-will-he-be-freed/>,
recognizing his "low level of training and lack of a leadership role in al
Qaida or the Taliban."

This was an important decision, which finally brought to an end the U.S.
government’s insistence that it could continue to hold him not because of
anything he was alleged to have done prior to his capture, but because of
concerns regarding his lack of compliance during his imprisonment at
Guantánamo.

However, the PRBs are a purely administrative process, which have no legal
weight, and, as has become apparent over the last two years, since
President Biden took office, although the administration claims to respect
the decisions taken in the Periodic Review Boards (not just in Qasim’s
case, but in the cases of 16 other men approved for release), the reality
is that, while these men continue to languish in an administrative limbo,
three other men who managed to persuade judges to weigh in on their cases
have already been freed.

Mohammed al-Qahtani, a severely mentally ill Saudi, was repatriated in
March last year
<https://www.closeguantanamo.org/Articles/388-Torture-Victim-Mohammed-Al-Qahtani-Finally-Released-from-Guantanamo-Sent-to-Mental-Health-Facility-in-Saudi-Arabia-But-19-Other-Cleared-Prisoners-Remain>,
having persuaded a judge two years previously
<https://www.andyworthington.co.uk/2020/03/13/us-judge-orders-independent-psychiatric-assessment-of-tortured-guantanamo-prisoner-mohammed-al-qahtani/>
that, as I described it at the time of his release, "a valid case could be
made that he should be sent back to Saudi Arabia because the authorities at
Guantánamo were unable to adequately deal with his illness."

In June last year, another prisoner, Asadullah Haroon Gul, an Afghan, was
repatriated
<https://www.andyworthington.co.uk/2022/06/26/afghan-prisoner-asadullah-haroon-gul-freed-from-guantanamo-where-36-men-now-remain-20-approved-for-release/>
after securing the first habeas corpus victory by a Guantánamo prisoner in
over ten years. Gul had allegedly worked with Hezb-e-Islami Gulbuddin
(HIG), a militia led by Gulbuddin Hekmatyar, who had aligned himself with
al-Qaeda after the U.S.-led invasion of Afghanistan in October 2001, but
had, as I described it on Gul’s release, "reached a peace agreement with
the Afghan government in 2016, meaning that the U.S. no longer had any
justification for holding anyone affiliated with HIG."

The third case involves Majid Khan, a Pakistani who had become embroiled in
al-Qaeda as a vulnerable young man, and had couriered money used for a
terrorist attack. Khan had been thoroughly remorseful about his actions,
but had been held and tortured in CIA "black sites" for three and a half
years before his transfer to Guantánamo in September 2006, where he
eventually became a cooperating witness. In return for his remorse and his
cooperation, he received a sentence capped at 19 years from the date of his
initial capture, which came to an end on March 1 last year. It took another
eleven months for the government to find a third country that was prepared
to offer him a new home (because it was unsafe for him to be sent back to
Pakistan), but eventually Belize was persuaded to accept him, and he
was resettled
there in February this year
<https://www.andyworthington.co.uk/2023/02/06/majid-khan-released-from-guantanamo-to-new-life-in-belize-20-others-approved-for-release-but-still-held-must-now-be-prioritized-by-biden/>
.

Because Khan had been given a sentence, and that sentence had come to an
end, the government was legally obliged to release him, and in fact, after
100 days had elapsed since his sentence ended, he had been able to ask a
court to order his release
<https://www.closeguantanamo.org/Articles/394-As-Majid-Khan-Asks-a-Court-to-Order-His-Release-from-Guantanamo-100-Days-Since-Completing-His-Sentence-20-Other-Prisoners-Never-Charged-or-Tried-Also-Await-Their-Freedom>
.

As I explained when Khan was freed, it was impossible not to contrast his
situation with that of the men approved for release but still held,
because, until they are freed, "the message the U.S. government is sending
to [them], and to the world, is that it is easier to resettle from
Guantánamo someone convicted of terrorism but demonstrably remorseful than
it is to resettle someone never charged with a crime at all."
The court submission in Khalid Qassim’s case, October 27, 2022

And so to Khalid Qassim, whose lawyers are trying to break through the
absurd and completely lawless situation whereby men approved for release
cannot ask a judge to order their release because the decisions to release
them were purely administrative.

This is not the motive behind the case submitted on Qassim’s behalf; that,
as it should be, is much more significant, as it strikes to the heart of
the government’s unacceptable claims that it can continue to legally hold
soldiers after the end of hostilities.

However, no one should forget that, in seeking to secure a judge’s order to
release Qassim, his lawyers are chipping away at a wall erected around
Qassim and the other men approved for release, who, as Khan’s lawyers
memorably described it when they went to court on his behalf after his
sentence ended, require the "discretion and grace" of the authorities to
secure their own freedom — a situation which, as we are seeing with the
ongoing imprisonment of Qassim and the other men approved for release, is a
poor substitute for the law.

At the end of October last year, Qassim’s lawyers — the hugely respected
legal scholar Anthony G. Amsterdam, University Professor Emeritus at NYU
School of Law; Thomas Wilner, who was Counsel of Record to the Guantánamo
prisoners in their Supreme Court cases establishing their right to habeas
corpus in 2004 and 2008; and his colleague Neil Koslowe — submitted a
motion, completely ignored by the mainstream media, in which they sought to
demonstrate how "longstanding, fundamental and accepted principles of the
law of war" do not "provide the government with the lawful authority it now
claims, to continue depriving petitioner of his liberty after the armed
conflict in which he was allegedly captured has ended."

In their introductory paragraphs, Qassim’s lawyers summarized "the facts"
of the case, which, as they explained, "are not in dispute."

As they stated:

The government does not dispute that petitioner has been imprisoned by the
United States Government at Guantánamo Bay since May 1 of 2002 and that he
has never been accused of engaging in or providing material support for
terrorism or of any other crime. It does not dispute that he is detained on
the basis of the government’s claim that, more than two decades ago, he was
part of or supported military forces engaged in active combat operations
against United States troops in Afghanistan. It also does not dispute that
those combat operations are over, that President Biden has declared an end
to that "forever" war and ordered the withdrawal of all U.S. troops, and
that, as of September 11 of last year, involvement by U.S. troops in active
combat has ended.

The government asserts, however, that despite the withdrawal of U.S. troops
and the end of active combat operations, the United States remains actively
engaged in fighting Al-Qaeda and other terrorist organizations around the
world through other, more targeted means, such as drone, air and missile
strikes and other methods of long-distance targeted killings. Petitioner
does not dispute those assertions.

The dispute arises over the consequence of those facts. The government
claims that it may continue to imprison Mr. Qassim, who was originally
taken into custody to prevent him from returning to an ongoing armed
conflict in Afghanistan, so long as it continues to be engaged in fighting
terrorists anywhere in the world. That fight of course is likely to
continue long after we are gone and probably long after our children and
grandchildren are gone. The government’s claim therefore is that it may
deprive petitioner of his liberty forever without charge or trial, even
though he has never been accused of engaging in terrorism, and even after
the end of the particular hostilities he is alleged to have engaged in.

As the lawyers proceeded to explain, the government’s claimed authority for
its detention policies at Guantánamo is the Authorization for Use of
Military Force (AUMF), a resolution passed by Congress the week after the
9/11 attacks, which "authoriz[ed] the executive to use all 'necessary and
appropriate force' against those responsible for the attacks." However, as
they noted, "The AUMF itself is silent on the authority to detain."

That authority only materialized in the Supreme Court in June 2004, in *Hamdi
v. Rumsfeld*, when, as the lawyers described it, the Court "confirmed that
the executive had the authority it was seeking under the AUMF to detain
individuals who it alleged were 'part of or supporting forces hostile to
the United States or coalition partners' in Afghanistan and who 'engaged in
an armed conflict against the United States' there."

However, as the lawyers added, "the Court carefully defined the scope and
duration of that authority." In her controlling opinion in the case,
Justice Sandra Day O’Connor accepted that the "detention of ‘individuals
who fought against the United States in Afghanistan … for the duration of
the particular conflict in which they were captured is so fundamental and
accepted an incident to war as to be an exercise of the 'necessary and
appropriate force' Congress has authorized the President to use."

As the lawyers proceeded to explain:

The Court emphasized, however, that these detentions could only be
"temporary"; their purpose was not penal but solely to prevent the
individuals "from returning to the field of battle and taking up arms once
again" during "the ongoing conflict." The Court emphasized that "[i]t is a
clearly established principle of the law of war that detention may last no
longer than active hostilities." It explained that U.S. detention authority
over individuals like petitioner who allegedly engaged in combat operations
against U.S. forces in Afghanistan existed only because "[a]ctive combat
operations against Taliban fighters apparently are ongoing." The Court
therefore concluded that the government’s detentions could continue "if the
record establishes that United States troops are still involved in active
combat in Afghanistan."

They added:

There is no doubt that the detention authority the government now claims
goes well beyond that authorized in *Hamdi*. It is more than a year since
all U.S. troops were withdrawn from Afghanistan, all active combat
operations ended and the President declared an end to the "forever" war
there. Yet, the U.S. government claims the right to continue detaining
these men even after "the particular conflict in which they were
[allegedly] captured" has ended and it says it has authority to continue
detaining them so long as it continues to fight terrorism anywhere in the
world. That, in effect, is a claim by the government that it has the right
to detain these men forever.

The supporting affidavit

In a supporting affidavit, three law professors — David Glazier, Professor
of Law at Loyola University, Robert K. Goldman, Professor of Law at
American University Washington College of Law, and Gabor Rona, Professor of
Practice Cardozo Law School, all professors of law "with specific expertise
in the international law governing armed conflict" — fully endorsed
Qassim’s lawyers’ position.

As they stated:

We have been asked to address the question whether long-standing,
fundamental and accepted principles of the law of war provide the U.S.
government with the authority to continue detaining individuals captured in
combat against U.S. and allied troops in the war in Afghanistan after that
war and its combat operations have ended but targeted strikes against
Al-Qaeda and other terrorist groups continue. The answer to that question
is no. There is no fundamental and accepted principle of international law
that provides the U.S. government with that authority.

We agree with the Supreme Court’s holding in *Hamdi v. Rumsfeld* that
preventative non-punitive detention of individuals "legitimately
identified" as Taliban combatants engaged in armed conflict against the
U.S. was a "fundamental incident" of warfare authorized by the
international law of war. But we also agree that Justice O’Connor’s opinion
for the court correctly declared that it "is a clearly established
principle of the law of war that detention may last no longer than active
hostilities." For this purpose the relevant active hostilities would be
considered to end with the end of active combat operations and the
withdrawal of all U.S. troops. At that point all law of war detainees must
be promptly released and repatriated unless they are either the subject of
active criminal proceedings or serving a lawfully adjudicated penal
sentence. In those cases — but only in those cases — repatriation can be
delayed until the completion of the judicial process and any punishment
imposed.

It would be unprecedented for the government to assert that individuals
detained as participants in one conflict could continue to be held after
the clear termination of active hostilities in that conflict while it
continues to combat terrorism around the world. There is no foundation for
that view in accepted principles of the law of war.

The hearing, December 5, 2022

As I see it, Qassim’s lawyers made a compelling and watertight case that
there was no legal basis whatsoever for his ongoing imprisonment. However,
to persuade the judge, Senior Judge Thomas Hogan in the D.C. District
Court, they were required to repudiate counter-claims made by Justice
Department lawyers, who, as they have throughout Guantánamo’s history,
behave as though their very lives depend on defeating any efforts in court
to challenge any aspect of the government’s claimed detention authority.

Arguing Qassim’s case, Thomas Wilner was required to fend off claims that
two previous "end of war" cases — *Al-Bihani v. Obama
<https://www.andyworthington.co.uk/2010/09/08/nine-years-after-911-us-court-concedes-that-international-laws-of-war-restrict-presidents-wartime-powers/>*
and *Al-Alwi v. Trump
<https://www.closeguantanamo.org/Articles/318-U.S.-Supreme-Court-Supports-Lifelong-Imprisonment-Without-Charge-or-Trial-at-Guantanamo-Only-Justice-Breyer-Dissents>*
— that had been turned down had any relevance to Qasim’s case, which they
clearly did not. These two cases were decided in 2010 and 2018, when the
U.S. was still involved in active combat in Afghanistan.

More deviously, the Justice Department lawyers tried to claim that the
remit of the AUMF had been extended by Section 1021 of the 2012 National
Defense Authorization Act (NDAA), which affirmed "the authority for the
Armed Forces of the United States to detain covered persons … pending
disposition under the law of war" — and with "covered persons" being those
who allegedly "planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored those responsible
for those attacks," or those who were "part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged in hostilities
against the United States or its coalition partners."

In particular, the Justice Department lawyers seized on one particular
description of the meaning of "disposition under the law of war" in Section
1021; namely, "Detention under the law of war without trial until the end
of the hostilities authorized by the Authorization for Use of Military
Force."

As Qassim’s lawyers pointed out in their submission, however, Section
1021(d) of the 2012 NDAA "explicitly states that the provision does not
'limit or expand the authority of the President or the scope of the
Authorization for Use of Military Force,'" and, as a result, *Hamdi*’s "end
of war" ruling regarding soldiers still stands.

In the hearing, Wilner also pointed out that Section 1032 of the 2012 NDAA,
dealing with military custody for those alleged to be "a member of, or part
of, al-Qaeda or an associated force that acts in coordination with or
pursuant to the direction of al-Qaeda," and "to have participated in the
course of planning or carrying out an attack or attempted attack against
the United States or its coalition partners," reinforced the distinction
between soldiers and terrorists.

Nevertheless, the Justice Department lawyers sought to invoke the purported
relevance of Section 1031 to Qassim’s case with reference to two other
cases decided in June and July 2022 — *Husayn v. Austin* and *Paracha v.
Biden*. As Wilner explained, however, in both of those cases allegations
had been made of involvement in terrorism, and therefore were not relevant
to Qasim’s case and its very specific focus on the impact of the end of
hostilities on a soldier.

To provide some additional context, it should be noted that Husayn is Abu
Zubaydah
<https://www.closeguantanamo.org/Articles/389-In-Abu-Zubaydah-Case-Justice-Gorsuch-Lays-Bare-the-U.S.-Governments-Shameful-and-Enduring-Torture-Problem>,
the first victim of the CIA’s post-9/11 torture program, who has indeed
been accused of involvement in terrorism, although, over the years, the
government has quite spectacularly walked back from most of its claims.
Paracha, meanwhile, is Saifullah Paracha, whose alleged involvement with
al-Qaeda was thoroughly undermined when the case against his son, Uzair
Paracha, collapsed and he was freed from a U.S. jail in March 2020. It took
until May 2021 for his father to be recommended for release, but he was
finally freed
<https://www.andyworthington.co.uk/2022/11/03/as-saifullah-paracha-guantanamos-oldest-prisoner-is-finally-freed-heres-the-full-story-of-his-shameful-19-year-imprisonment/>
at the end of October last year.

I note these cases because, it seems to me, it would be worthwhile for
everyone involved in defending lifelong imprisonment without charge or
trial at Guantánamo to not only stop trying to defend the imprisonment of
soldiers after a war has ended, but also to read carefully the affidavit
submitted in Qassim’s case by the three law professors, who, after stating
that "active hostilities would be considered to end with the end of active
combat operations and the withdrawal of all U.S. troops," added, "At that
point all law of war detainees must be promptly released and repatriated
unless they are either the subject of active criminal proceedings or
serving a lawfully adjudicated penal sentence. In those cases — but only in
those cases — repatriation can be delayed until the completion of the
judicial process and any punishment imposed."

With reference to Qassim, however, Tom Wilner pointed out that, in *Husayn*
and *Paracha*, the judges "never addressed whether settled law-of-war
principles support the government’s claim that it may continue to detain
men like petitioner [Qassim] who were allegedly captured for engaging in or
supporting active combat operations against United States troops after
those combat operations have ended," bringing Justice O’Connor’s ruling in
*Hamdi* back into sharp focus.
Judge Hogan’s "concern" about Qassim’s endless imprisonment

Although it is impossible to predict what conclusion Judge Hogan will reach
in Qassim’s case, there were reassuring moments in the hearing — when, for
example, he discussed Judge Mehta’s ruling granting the habeas corpus
petition of Asadullah Haroon Gul, despite the Justice Department’s efforts
to keep him imprisoned forever without charge or trial (and in spite of a
decision by a PRB to approve his release).

As Judge Hogan described it, Judge Mehta "raised concerns" about "how long
the government would keep its position where the active battles in
Afghanistan have been long over," and yet the position taken by the
government in Gul’s case "suggest[ed] that the detention for Gul could last
for the rest of his life, and that he [saw] concerns about that."

Judge Hogan added, "Obviously, this Court has had concern about Qassim from
the beginning."

As he further explained, as "a simple foot soldier," as Qassim contends he
was, "he can't be held forever on the allegation that he is some kind of a
terrorist."

As he also explained, "You can't just take this young man who came out of a
village in another country who apparently traveled to Afghanistan and got
caught in the battle in Afghanistan and had not gone abroad, had not
planned any type of terrorist activity anywhere, or anything else," adding
that there had even been "a question of whether he carried a weapon or not."

Judge Hogan also mentioned Qassim’s status as a prisoner finally approved
for release by a PRB, asking the Justice Department lawyer, Julia Heiman,
"What obligation, if any, under the law and the detention authority you
have cited, does the government have to find a place for these cleared
individuals, like Mr. Qassim, whose background is, I think, as slight a
connection with terrorism as you can have? I mean, he is not a planner,
organizer — he is none of that, in the factual predicate there. So what
happens eventually?"

He added, "I have been concerned for several years that he wasn't cleared
for a long time and now, under this administration at least, they have been
clearing some people, but they haven't moved anybody out," and asked
whether a State Department official had been assigned to the task, as had
been the case under President Obama.

In response, after consulting with her colleagues, Julia Heiman replied
that "Ambassador Kaidanow now has been appointed as responsible for matters
pertaining to the transfer of detainees from Guantánamo" — although it was
unclear how much or how little she knew about Ambassador Kaidanow’s
appointment last summer, or how much or how little the Justice Department
cares that they continue to defend the detention of prisoners even when
they have been approved for release through the PRB process.

I can’t help but wonder whether Judge Hogan was quietly highlighting the
lack of joined-up thinking that has plagued Guantánamo since the Obama
years, when the Justice Department persistently — as now in Qassim’s case —
sought to defend the ongoing imprisonment of men who had been approved for
release though administrative review processes.

In conclusion, Tom Wilner highlighted why a court order in Qassim’s case
was so necessary.

As he explained:

First, I have met with the State Department's office in charge of
relocation. They are very nice people, and I will say that they have a very
difficult job. [F]irst of all, it's very hard to get countries to accept
people because we won't accept them. Every country says: "Why won't you
take any? Why do we need to take your people?," which is really something.
Second of all … even when somebody is cleared, you don't get full support
from the government agencies here. Some will still raise questions: "Why
are we doing this?" Security agencies. Third, it's particularly difficult
now because there is a flood of refugees around the world seeking asylum in
these countries … The fact is that, without a court order, these people are
nothing but a slab of meat subject to whatever the government does to them,
whenever they allow us to meet with them. It's really disgusting.""

He concluded, "Your Honor, let me say, I think the government's claim is
really obfuscation here."

I hope Judge Hogan fully understands the historic significance of the case
before him. Sadly, as can be seen by the mainstream media's failure to even
pay attention to it, the dangerous betrayal of the law at Guantánamo is not
of much interest to Americans today, but a decision to approve Khalid
Qassim for release would be remembered as a high point in the legal
landscape of Guantánamo that has had too few high points since the prison
opened over 21 years ago.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20230406/1c525eba/attachment.htm>