Last week, Justice Department lawyer Ronald Wiltsie told a federal district court in Washington, D.C. that the Trump administration is entitled to imprison detainees for 100 years without charge or trial.
Wiltsie was responding to a question from U.S. District Judge Thomas Hogan, who seemed troubled by the government’s unequivocal claim that pursuant to the laws of war, it can hold men at Guantanamo without charge until the “end of hostilities” — regardless of when, if ever, that may be.
“So if we have 100 years of war,” as there were between France and England in the 14th – 15th centuries, Judge Hogan asked, “can these same detainees be held that whole time?”
“Yes, your honor,” said Wiltsie. “We could hold them for 100 years if the conflict lasts for 100 years.”
This exchange, highlighting the absurdity of the government’s position, was articulated during a July 11 hearing in al-Bihani v. Trump, a mass habeas corpus petition brought on behalf of eleven Guantanamo detainees. The government’s position stretches its interpretation of the laws of war to an illogical extreme.
Indeed, only provisions of the Geneva Conventions that apply to international armed conflict between states provide a legal basis for detention. Drafted in the wake of the World Wars in the 20th Century, the Conventions’ drafters certainly were not contemplating the hundred years’ war between kingdoms. There is no explicit authorization of detention in the Convention’s rules governing non-international armed conflict, between a state and a non-state armed group. And while the U.S. government has claimed that the rules of international armed conflict apply to what it has termed its global conflict against the non-state armed groups al Qaeda, the Taliban and “associated forces”, there comes a time when that analogy gets stretched too far.
As Center for Constitutional Rights Legal Director Baher Azmy, representing the detainees, told Judge Hogan on Wednesday: “there must be some limits.”
Yet throughout the last two decades, the U.S. has misapplied these rules by analogy to situations that aren’t armed conflicts at all, as well as to situations that are non-international armed conflicts, in which international humanitarian law on its own cannot serve as a legal basis for detention.
The Supreme Court itself has acknowledged that the government may exceed the limits of that analogy, as Judge Hogan noted on Wednesday. Clearly troubled by the government’s argument, he quoted Justice O’Connor statement in Hamdi v. Rumsfeld that while the laws of war allow detention to prevent a return to the battlefield during armed conflict, “if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”
Nearly 17 years after the start of a conflict that the U.S. government has conceded may continue for generations and is already the longest in this nation’s history, that understanding no longer makes sense. Not only does the war appear to have no end, but the parties the U.S. is fighting have drastically changed. Core al Qaeda has since splintered into various groups in different countries, and the U.S. has changed and expanded its targets to “associated forces” far beyond Afghanistan. If the detainees had any actual connection to al Qaeda before – their detention is based only on a “preponderance of the evidence” that they were members of the organization – al Qaeda is a very different organization today.
The connection may be most obviously attenuated, and the government’s position least defensible, when it comes to the five detainees whom the U.S. government has already determined, based on evidence presented to representatives of all relevant U.S. national security agencies, can be safely transferred out of Guantanamo. That includes Toffiq al-Bihani, a 46-year-old citizen of Yemen who was born and raised in Saudi Arabia, a U.S. ally which has agreed to accept him. Al-Bihani has never been accused of any crime. He was seized in Iran and turned over to Afghan authorities in 2002. They gave him to U.S. forces at a time when the U.S. was paying bounties for suspected fighters. Al-Bihani was interrogated and tortured in a CIA black site, and eventually sent to Guantanamo in 2003. He has been there, without charge, ever since.
The Obama administration had been actively preparing for al-Bihani’s transfer to Saudi Arabia, consistent with President Obama’s stated intention to close the Guantanamo prison. President Trump, however, has insisted he’ll keep Guantanamo open, announced on Twitter that “there should be no further releases from Gitmo” and characterized all of the men there as “extremely dangerous people.” He quickly eliminated the special envoy positions President Obama had created to effectuate the detainees’ safe transfer. No one at either the Defense or State Departments now appears to be tasked with that role. Last week, Wiltsie acknowledged that there are no current plans to transfer al-Bihani or any other detainees.
As Judge Hogan noted on Wednesday, “there is evidence of reluctance if not outright refusal to release them.”
Whether Judge Hogan believes he can order their release remains to be seen, as he noted repeatedly on Wednesday that he is constrained by rulings of the DC Circuit that have granted extraordinary deference to the government’s detention determinations. Still, the hearing itself was significant for forcing the Trump administration to publicly articulate its extreme position that flies in the face of any acceptable notion of human rights: that it has the authority to detain men never even charged with a crime in an isolated offshore prison for the rest of their lives.