In January, I wrote about the petition filed by the Center for Constitutional Rights (CCR) in D.C. federal district court for an order granting the writ of habeas corpus on behalf of eleven detainees at Guantanamo Bay—Tofiq Nasser Awad al-Bihani, Sharqawi al-Hajj, Sanad al-Kazimi, Suhail Sharabi, Said Nashir, Abdul Rabbani, Ahmed Rabbani, Abdu Latif Nasser, Abdul Razak, Abdul Malik, and Abu Zubaydah—whom, according to the petition, “have all been detained at Guantánamo without charge or trial, many of them for nearly 15 years or more.” Since the CCR filed its motion, the government has submitted a collective response, the petitioners have submitted their reply brief, and three separate groups of amici have filed briefs supporting the petitioners. This post summarizes these developments.
Here’s a quick review of the petitioners’ habeas petitions, taken from my January piece:
The motion begins by recapping the history of the Guantanamo Bay detention center, highlighting the Supreme Court’s rulings barring unchecked detention in Rasul v. Bush (ruling that U.S. courts have jurisdiction to hear detainees’ habeas petitions), Hamdi v. Rumsfeld (in which a plurality held that detention was subject to due process concerns, including notice, counsel, and an opportunity to be heard), and Boumediene v. Bush (adjudging that detainees’ habeas rights cannot be legislatively abridged and that such rights must include a “meaningful opportunity” for one to challenge his detention).
Next, plaintiffs turn to Bush and Obama administration efforts to close Guantanamo ...
The motion proceeds to detail the impact of indefinite detention on the 11 petitioners ...
As for the final piece of the contextual puzzle, the CCR’s motion points out “President Trump’s [r]efusal to [r]elease [p]etitioners [d]uring [h]is [p]residency.” Specifically, the motion collects many of President Trump’s statements—including his “pledge to keep Guantánamo open and ‘load it up with some bad dudes,’ and [statement that] he would ‘absolutely authorize’ torture techniques like waterboarding against terrorist suspects, ‘who deserve it anyway’”; his apparent belief that Americans ought to be tried in military commissions in Guantanamo Bay; his tweet that “there should be no further releases from Guantanamo”; and his defense of detention through his tacit endorsement of President Franklin D. Roosevelt’s Japanese internment—to “ensure that the remaining detainee population, regardless of conduct, circumstance or status, will remain imprisoned at Guantánamo for at least four to eight more years.” The motion then connects this stance with Trump’s “regularly expressed, undifferentiated suspicion of, and antipathy toward, Muslims,” substantiated by listing another round of tweets, statements, and interviews, to demand “judicial scrutiny.”
With this background, the habeas petition argues that their detention should be terminated under two individually sufficient claims: first, that the due process protections they are afforded under Boumediene have been violated based on the duration of their detention and its insufficient justification—particularly for multiple petitioners that have been cleared for release; and second, that their detention violates the 2001 authorization for use of military force (AUMF), which “do[es] not permit indefinite, unreviewable detention of the sort Petitioners now endure.”
The government begins its response by laying out the legal regimes at play—including vetting practices and procedures—as President Trump recently made clear in Executive Order 13,823, entitled Protecting America Through Lawful Detention of Terrorists. Thereafter, the government clarifies the positions of each of the eleven petitioner-detainees in question, including expounding on the situations of Nasser and al-Bihani, two of the petitioners that have allegedly been cleared for transfer. The government explains that though a Periodic Review Board (PRB) recommended Nasser’s transfer, the government is still waiting for a decision to be made by the defense secretary—Secretary Ash Carter failed to make a decision when one was presented to him just before he left office—as to whether the United States should accept the security assurances provided by the government of Morocco. On the other hand, while the Guantanamo Review Task Force designated al-Bihani for conditional detention (which would allow transfer in certain circumstances), Secretary Carter decided against transfer in January 2017 “based on a variety of substantive concerns relevant to Petitioner’s circumstances, including factors not related to Petitioner himself.”
The government’s first argument is that the petitioners’ detention is lawful under the AUMF because hostilities remain ongoing. First, the government lays out the precedent (Hamdi) that—as informed by the laws of war (codified in Article 118 of the Third Geneva Convention of 1949)—undergirds the proposition that individuals may be detained for the duration of active hostilities. Having reviewed subsequent D.C. Circuit holdings that reaffirm Hamdi’s precedent, the government then reviews the D.C. Circuit’s al-Bihani v. Obama decision, which “held that ‘[t]he determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war,’” as well as the D.C. Circuit’s affirmation of Al-Bihani in Maqaleh v. Hagel. The government then marshals evidence to support the conclusion that hostilities remain ongoing. In addition to citing reports issued pursuant to the War Powers Resolution and the continued enforcement of the AUMF, the government cites “the facts on the ground in Afghanistan[,]” as evident in President Trump’s Aug. 21 announcement that the United States would be increasing the number of military personnel in Afghanistan to continue to engage enemy forces, the continued U.S. involvement in the North Atlantic Treaty Organization (NATO)’s Operation Resolute Support, the continuation of the United States’ Operation Freedom’s Sentinel, and ongoing terrorist activity in Afghanistan.
The government then addresses the petitioners’ “erroneous” arguments. The government asserts that the petitioners’ continued detention under the AUMF is neither “perpetual” nor “indefinite.” Instead, the government advances, their detentions are simply coterminous with continued hostilities. To rule otherwise would not only buck precedent, the government argues, but it would also “turn the law respecting wartime detention on its head; Petitioners effectively ask this Court to reward enemy forces for extending the length of the conflict by persistently continuing their attacks.” Moreover, the government puts forward, “Petitioners also erroneously contend that they should be released because the purpose underlying their law of war detention – i.e., to prevent their return to the battlefield – ‘has evaporated’ and no longer exists.” Because, the government writes (quoting Hamdi), “the very purpose of law of war detention is ‘to prevent captured individuals from returning to the field of battle and taking up arms once again,”’ detention remains warranted so long as hostilities against al-Qaeda remain.
The government proceeds to argue that, more broadly, petitioners’ continued detention does not violate due process protections. The government asserts that “[t]he law of this Circuit is that the Due Process Clause does not apply to unprivileged alien enemy combatants detained at Guantanamo Bay.” Instead, they argue, the D.C. Circuit has already interpreted the Supreme Court as having “‘explicitly confined [Boumediene’s] constitutional holding ‘only’ to the ... Suspension Clause,’ thereby ‘disclaim[ing] any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions.”’ (The government buttresses this conclusion by quoting Kiyemba v. Obama.) “In summary,” they claim, “the binding law of this Circuit remains that enemy combatants detained at Guantanamo Bay may not claim rights under the Fifth Amendment’s Due Process Clause.”
Nevertheless, the government states that even if, for argument’s sake, the petitioners had due process rights, their detention would still not violate those rights, as “binding Supreme Court and Circuit precedent also establishes that Petitioners’ continued detention is fully consistent with due process.” The government asserts that Hamdi holds “that the AUMF authorized detention until the cessation of active hostilities,” and that the D.C. Circuit has reaffirmed this holding time and again. Given the aforementioned continued hostilities with groups to which the petitioners are connected, the government contends that “petitioners’ continued detention is not unconstitutionally indefinite” nor is it “unconstitutionally arbitrary.”
Finally, the government notes that “[i]n Boumediene, the Supreme Court explicitly left to the ‘expertise and competence of the District Court[s]’ the task of determining appropriate evidentiary and procedural rules for these Guantanamo habeas cases.” Having laid these rules out and the cases affirming them, the government states that “Petitioners again ask this Court to reverse or ignore binding Circuit precedent. To do so would be error ... For this reason alone, this claim should be denied.” The government goes on to note that the D.C. Circuit has repeatedly affirmed the constitutionality of these procedures, including the applicable preponderance-of-the-evidence standard for wartime detention. And to the extent that petitioners rely on the passage of time as a factor that diminishes the constitutionality of these procedures, the government contends that the D.C. Circuit has rejected this logic in Ali v. Obama, wherein it held that the applicable burden of proof remains “temporally fixed.”
Petitioners’ Reply Brief
Petitioners begin their reply brief by adding exposition to the narrative put forward in their petition. First, they note that President Trump confirmed his policy of refusing the transfer detainees from Guantanamo—in the State of the Union, no less. Second, they look to the Trump administration’s closing of the Office of the Special Envoy for Guantanamo Closure, which “has historically been responsible for executing the essential diplomatic, policy and administrative steps incident to a prisoner transfer,” to enforce his policy. Third, petitioners assert that the administration “[d]oes [n]ot [p]lan to [t]ransfer [p]etitioners [c]leared for [r]elease,” specifically Nasser and al-Bihani. And fourth, the petitioners further assert that the “wholly inadequate” PRB process cannot “displace the judiciary’s obligation to review the legality of ongoing detention under the Constitution and the AUMF[,]” in substantial part because any recommendations for transfer PRBs may make are likely to be rejected in light of President Trump’s stated no-transfers policy.
Turning next to their legal arguments, the petitioners reprise their earlier argument that their detention violates due process protections. The petitioners first assert that the due process clause applies in Guantanamo Bay in the same manner as the suspension clause and ex post facto clause, as the “distinction between structural limits on government powers and rights conferred on individuals alluded to by the government is entirely artificial.” Thereafter, petitioners argue that, contrary to the government’s assertion, no on-point D.C. Circuit precedent did—or even could—“hold that Boumediene limited the Constitution’s extraterritorial reach to the Suspension Clause.” They then attempt to distinguish many of the cases the government relied on, namely Rasul v. Myers, Al-Madhwani v. Obama, and Ali v. Obama.
Having done so, petitioners next argue that “[t]he government fails to address the extensive Supreme Court precedent concluding that due process forbids the executive branch from holding individuals in noncriminal detention—of the kind that is at issue here—indefinitely.” Petitioners contend that detention must be related to the ostensible purpose of the detention, something that does not exist in the present case, as petitioners’ “detention is arbitrary collective punishment driven by executive fiat and animus”—particularly in the case of Nasser and al-Bihani, the individuals already cleared for transfer. Petitioners then attack the government’s reliance on Hamdi, stating that the case, though “decided more than a decade ago under very different circumstances[,]” nonetheless “expressed concern about the possibility of prolonged detention and held that ‘indefinite or perpetual detention’ was impermissible skepticism at prolonged detention.”
Next, petitioners argue that their continued detention violates the AUMF “on its own terms and as construed against due process requirements.” As petitioners point out, “[t]he plain text of the AUMF authorizes only ‘necessary and appropriate force’ in service of its ends.” Yet, the petitioners contend,
the government reflexively responds that Petitioners’ detention is not indefinite or perpetual because ‘it is bounded by the cessation of active hostilities’[;] and, yet, in the same breath it concedes that hostilities will only end when Al Qaeda—amorphous as it is—‘has unconditionally surrendered’ ... ; in other words, never.
Thereafter, petitioners assert that the laws of war indeed support relief rather than further detention:
The Hamdi plurality made clear that its opinion was confined to the “narrow circumstances” before it, where Hamdi, captured on a recognized battlefield allegedly holding a rifle, was only two years into his detention ... Specifically recognizing the validity of Hamdi’s concern that the Court’s theory might permit perpetual detention, the plurality cautioned that its understanding of the law-of-war rule permitting detention for the duration of hostilities under the AUMF—far from remaining fixed—might change, indeed, unravel.
Petitioners next advance that their detention no longer serves a legitimate purpose. In the case of Nasser and al-Bihani, where transfer is made “permissible” because, quoting Executive Order 13,567, “continued law of war detention is [no longer] warranted … to protect against a significant threat to the security of the United States,” petitioners argue that such a determination forecloses any justification under the AUMF. “As to other Petitioners, they maintain that the conflict against the core Al Qaeda organization in connection with which they were captured—assuming they were all captured in those circumstances— has largely been taken over by disparate battles involving a string new global actors[.]” Therefore, petitioners reason, “President Trump’s stated and demonstrated opposition to any detainee transfer—cleared or not, which the government simply ignores—only confirms that Petitioners’ ongoing indefinite detention is not pursuant to any legitimate military need, but rather based wholly in this president’s particular brand of politics and animus.”
Lastly, the petitioners claim that the authority that permitted their initial detention under the AUMF has “unraveled.” “The prospective concern in Hamdi is now the reality for Petitioners, 14 years later, in the context of a conflict that under the government’s standards may last another generation.” Moreover, the petitioners note that the government’s suggestion that nothing has changed in the last 14 years of this conflict “strains credulity.”
Due Process Scholars’ Amicus Brief
The authors of this amicus brief are “law school professors who have worked and written extensively in the fields of Due Process, criminal and non-criminal detention, constitutional law, and/or habeas corpus[,]” specifically:
- Eric Freedman (Hofstra Law School),
- Bernard Harcourt (Columbia Law School),
- Randy Hertz (NYU School of Law),
- Eric Janus (Mitchell Hamline School of Law),
- Jules Lobel (University of Pittsburgh Law School),
- Kermit Roosevelt (University of Pennsylvania Law School),
- Michael Wishnie (Yale Law School),
- Larry Yackle (Boston University School of Law).
At its foundation, the brief holds that under Rasul and Hamdi, “courts may exercise jurisdiction over the Executive’s potentially indefinite detention of individuals held at Guantánamo,” and that, quoting Boumediene, the suspension clause demands that petitioners “are entitled to the privilege of habeas corpus to challenge the legality of their detention.”
Having established this basic understanding, the brief advances the thrust of its argument: “Indefinite [d]etention of [p]etitioners, [w]ithout [c]harge or [t]rial, [v]iolates the Due Process Clause.” Opening with a quote from Jones v. United States (itself quoting O’Connor v. Donaldson), amici claim:
It is beyond cavil that non-criminal confinement, for any purpose, “constitutes a significant deprivation of liberty that requires due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Accordingly, courts must consider whether the purpose of the detention is to punish the detainee(s) and, if not, whether the duration of the detention is excessive in light of the government’s purpose.
Amici hold that the government’s justification for the petitioners’ detention, “particularly without strong procedural protections,” as well as their detentions’ duration are individually sufficient to find a due process violation.
Regarding the former, amici cite Supreme Court precedent from a different context—civil confinement—which held that “[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment.” The brief goes on to cite analogous precedent from the high court that stands for the same proposition in criminal law (Foucha v. Louisiana) and immigration law (Zadvydas v. Davis). As such, amici claim, “the Executive’s claims that Petitioners are simply too dangerous to be released are insufficient to justify Petitioners’ indefinite detention.” Moreover, the “severely limited Periodic Review Board proceedings contrasts starkly” with the procedural protections required for long-term detention in other contexts, argues the brief. Thus, the petitioners’ detention should not be upheld due to its insufficient justification and procedural protections.
With regard to duration, the amici compared three cases in which the Supreme Court adjudicated the constitutionality of confinement statutes: Salerno v. United States, Foucha, and Zadvydas. In analyzing these three together, the amici believe that only “strict durational limitations, in conjunction with a series of procedural protections designed to provide ... sufficient process, satisfied the requirements under the Due Process Clause.” In contrast, “[b]ecause [the petitioners] have been held for at least a decade with no prospect for release in the ‘reasonably foreseeable future,’ their detention violates the Due Process Clause.”
Finally, the brief argues that the AUMF is lacks the requisite explicit authorization for indefinite detention and must be interpreted to include limits on how long one may be detained.” The brief states that, quoting Zadvydas, “the Supreme Court has required a ‘clear indication of congressional intent’ in order to uphold indefinite detention schemes,” as it should bar such procedures even if a court could construe it to provide for such a scheme, as was the case in Clark v. Martinez. “Here,” the brief reads, “the plain language of the AUMF does not include a clear statement providing for indefinite detention without charge or trial,” notwithstanding the AUMF’s broad language that endows the president with “authori[ty] to use all necessary and appropriate force ...”
Center for Victims of Torture Amicus Brief
The brief begins with a decidedly different bend compared to the due process scholars’ brief, tracing the history of the Guantanamo Bay prison facility to conclude, “Guantánamo would forever be synonymous with torture.” And as it relates to the case at bar, this brief takes time to highlight the remaining detainees that are themselves survivors of torture, “including at least seven of the eleven men who joined the habeas petition.”
With this background, the brief then claims that those still detained at Guantanamo are suffering, particularly those detainees that have survived torture. The Center for Victims of Torture relies heavily on their “thirty-three years of experience healing torture survivors,” arguing that “indefinite detention causes such severe and prolonged health and mental health problems that it can constitute cruel, inhuman, and degrading treatment.” The brief then painstakingly reviews all of the “harmful psychological and physical effects” it asserts the petitioners are likely experiencing. Moreover, the brief asserts that the symptoms have a ripple effect, as they impact not only the petitioners but also those around them who are forced to helplessly observe these symptoms. Thereafter, the brief details how torture degrades one’s sense of identity and humanity. It notes that “[e]ffective rehabilitation is, of course, possible, but only under the right conditions.” And it asserts that the petitioners will likely continue to suffer absent rehabilitation, which Guantánamo cannot in any way provide. To substantiate its claim, amici cite the center’s director of client services, clinical psychologist Andrea Northwood, who laid out the four necessary conditions for effective rehabilitation:
a) providing a sense of control to the victim over key features of the rehabilitation context, content, and process; b) restoring a felt-sense of safety as it pertains to the internal physiological state and external habitat of the victim, including adequate management of pain; c) providing the victim with trusted human connections that are consistently available, including regular, predictable access to the treatment provider(s) and regular, meaningful access to other trustworthy sources of social support; and d) the treating provider(s) must be sufficiently skilled and experienced in treating severe trauma explicitly designed and perpetrated by other human beings.
“It is perhaps axiomatic,” amici then argue, “that these requirements cannot be met at Guantánamo, at least not in any meaningful sense that would allow for effective rehabilitation.” In detailing why Guantanamo could not meet any of these requirements, the brief concludes: “Guantánamo is the antithesis of what Dr. Northwood explains is required to rehabilitate torture survivors effectively.” In light of this, amici ask the court to “put a stop to [petitioners’] suffering by granting [their] motion.”
Assorted Civil Rights Non-Profits Amicus Brief
The third and final brief represents “a collection of Muslim, faith-based, and civil rights community organizations,” including the following organizations:
- The Asian Americans Advancing Justice;
- The Asian American Legal Defense and Education Fund;
- The American-Arab Anti-Discrimination Committee;
- The Capital Area Muslim Bar Association;
- The Council on American-Islamic Relations-National;
- The Muslim Bar Association of New York;
- The Muslim Justice League;
- The Muslim Public Affairs Council;
- The New Jersey Muslim Lawyers Association;
- The Revolutionary Love Project;
- The T’ruah: The Rabbinic Call for Human Rights; and
- The Amici Muslim
Amici introduce their brief by stating, “President Trump’s determination that he will wholly and indefinitely halt the release of the remaining Guantánamo detainees, all of whom are Muslim men, is motivated by his well-documented animus against Muslims.” Amici then “document ... the President’s deep and avowed anti-Muslim animus because it is directly relevant to the question before the Court in this case,” equating the president’s call to “halt the release of the remaining Guantánamo detainees” with “effectuat[ing] anti-Muslim policies and directives.”
The amici’s argument starts by asserting that President Trump espouses an ideology that “falsely equates [Islam] with terrorism.” Amici reprise the history of then-candidate Trump’s proposed policies relating to Muslims, including advocating for the creation of a Muslim database or registry, the shutting down of mosques, and the idea of a “Muslim ban” whose ultimate enactment as the so-called “travel ban” has been covered extensively on Lawfare. With these policies allegedly demonstrating President Trump’s anti-Muslim animus, amici claim that he “has abandoned the bipartisan practice of undertaking individualized assessments of Guantanamo detainees in favor of a blanket policy against release or transfer, regardless of circumstance.”
In sum, amici conclude:
[T]he President’s refusal to release or transfer anyone from Guantánamo is simply a continuation of policies designed to actualize his antipathy towards Muslims and Islam. As the Muslim Ban cases demonstrates, courts recognize their obligation to check executive actions that are driven by animus and untethered to facts or law. President Trump’s indiscriminate and unlawful treatment of Guantánamo detainees calls for no less judicial scrutiny.