A U.S. military guard carries shackles before moving a detainee inside the U.S. detention center for ‘enemy combatants’ on September 16, 2010 in Guantanamo Bay, Cuba. (EDITOR’S NOTE: Image has been reviewed by the U.S. Military prior to transmission.) (John Moore/Getty)

On January 11, Guantánamo’s 16th anniversary, Daphne Eviatar and I wrote about a new mass habeas motion brought by eleven of the facility’s forty-one remaining detainees. These men argue that their continued detention under President Trump—which is now seemingly without regard to their individual circumstances—is neither constitutional nor authorized by the 2001 Authorization for Use of Military Force (AUMF) against those responsible for the September 11, 2001 attacks. (For more on the filing and circumstances surrounding it, see this op-ed by petitioner Sharqawi Al Hajj, this one by his lawyer Pardiss Kebriaei, and this New York Times editorial).

There have been two developments in the case since.

Yesterday, my organization, the Center for Victims of Torture, filed an amicus brief explaining that “the status quo at Guantánamo is human suffering,” and arguing that because the “United States should not be in the business of prolonged noncriminal detention to that end,” the court should grant the detainees’ motion.

Our hope is that the court will give serious consideration both to the grave medical consequences associated with indefinite detention, and to what it means for torture survivors to be trapped—without access to effective rehabilitation—in a place synonymous with torture.  (See my piece from last week for more on the human costs of Guantánamo.)

Two other amicus briefs have also been filed, each of which dives more deeply into why detention is now different under President Trump and in 2018 such that the courts must intervene. One, on behalf of a collection of Muslim, faith-based, and civil rights community organizations puts the president’s approach to Guantánamo in the broader context of his demonstrated anti-Muslim animus.

“Against the backdrop of his fundamental bias against Muslims and the affirmative actions he has taken as President to injure Muslims,” the brief argues, “the 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.” The Guantánamo petitioners’ case is analogous to the Muslim Ban cases, according to the brief which urges the court to step in here, as courts did there, to check an executive branch policy “avowedly driven by a discriminatory and punitive ideology.”

The other amicus brief, filed on behalf of constitutional law and criminal procedure experts, dives deeply into why the Constitution prohibits continued indefinite detention at Guantánamo. “This current ‘Forever War’ has already lasted nearly four times the duration of War World II, and is longer than any U.S. war in history,” the brief notes at the outset, “as a result of which continued Executive detention has crossed any reasonable durational limit contemplated by Due Process, or by the Court’s decisions in [Hamdi v. Rumsfeld] and [Boumediene v. Bush].”

In addition to (and intertwined with) their sheer-length-of-detention argument, the scholars explain that Supreme Court jurisprudence does not sanction preventive detention on the basis of purported dangerousness alone (i.e., without some other special circumstance), especially in the absence of strong procedural protections (which the habeas petitions have not been afforded). Finally, the scholars argue that by its terms, the AUMF does not authorize indefinite detention without charge or trial—indeed, it doesn’t mention detention at all—and because Congress never made such a clear statement the statute must be read narrowly, which at this point means charging the petitioners or releasing them.

The second development in the case is Judge Kollar-Kotelly’s order, in response to the detainees’ habeas motion, requiring the government to explain its Guantánamo policy with respect to the men now petitioning the court. Specifically, the judge ordered the government to provide the following information by Feb. 16:

(i) The Government shall include a brief summary of its policy with respect to the Guantanamo Review Task Force (“Task Force”) and the Periodic Review Boards (“PRB”), including whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantanamo Bay, Cuba, continues to consider whether to release or transfer those prisoners, and specifically (a) whether the Government intends to transfer the Petitioners previously designated for transfer by the Task Force and/or PRB, and (b) whether the Task Force, PRB, and/or another component of the Government tasked with reviewing the files of prisoners held at Guantanamo Bay, Cuba, is presently considering releasing or transferring the Petitioners who were not previously designated for transfer.

(ii) The Government also shall include a short summary as to the detainment status of each Petitioner.

Stay tuned…