There Has Been Absolutely No Movement on Guantánamo

Janine Jackson: January 11 marked 16 years since the opening of the military prison at Guantánamo Bay, Cuba, specifically designed to be beyond the reach of US law and away from public view, holding only Muslim men and boys, many without charge or trial. Guantánamo is a monument to the lawlessness and cruelty of the US after September 11, 2001, throwing over civil rights and liberties under the pretense of defending the country from those who “hate us for” them.

For as long as it’s been open, activists, attorneys and others have been refusing to forget Guantánamo and the people imprisoned there. With 41 men remaining, there is a new effort to challenge their continued detention — now, for many, under its third presidency. The filing, in Washington, DC, federal court, is on behalf of 11 of the remaining prisoners.

Our next guest is part of the legal team behind it. Pardiss Kebriaei is senior staff attorney at the Center for Constitutional Rights. She joins us now by phone, from here in town. Welcome back to CounterSpin, Pardiss Kebriaei.

Pardiss Kebriaei: Thank you, Janine, it’s good to be here.

Tell us about this new legal challenge. What is your argument, and has it changed?

It is different than what we’ve argued before. So it is on behalf of 11 of the 41 men who remain detained, as you said. All of these men are people who’ve been held for at least a decade without charge at Guantánamo, and held before that too. So, in total, it’s actually true to say that all of them have been held for nearly 16 years without charge. Two of them have actually been approved for transfer by the United States, which means that every government agency with a stake in their detention has said they don’t need to be there, despite their continuing detention.

And the basic argument, under the Constitution and under international law, is that their detention is indefinite and perpetual, and that’s as clear as it’s ever been under the Trump administration, and perpetual detention of this kind is illegal. It’s not permitted by the due process clause of the Constitution, and it’s not permitted under the laws of war. These detentions are absolutely unprecedented, in both the basis for continuing to hold people, the standards of evidence that have been used, the procedures that have justified these detentions and their duration. So we make arguments under the Constitution and under international law.

And the basic request to the Court is to grant their habeas petitions and order release, and to find that these detentions are unlawful. The government has the option of — as it’s always had, if it wants to continue detaining them — charging them, if there’s credible evidence, charging them in a fair process, not the military commissions. But otherwise, this continuing limbo is untenable, the status quo is not tenable, so that’s the basic argument and request.

Donald Trump has flatly declared that he won’t be releasing any prisoners from Guantánamo, and that sort of statement is meaningful in itself, is it not? As with the Muslim ban, where he said he wants to lock Muslims out of the country, but then tries to argue in court that the ban is not religion-based. Those words can be used, can’t they?

Absolutely. He made clear as a candidate that no detainee should be transferred from Guantánamo, and that was because, in his words, they were all dangerous. This was without regard to the facts, as usual, without regard to the fact that five people, at least, have been approved for transfer, meaning that the government itself has determined they are not a threat, but he made this blanket statement, and more importantly, that position has played out over the first full year of his administration.

There has been absolutely no movement on Guantánamo at all. The offices that had been set up, that had been opened under the Obama administration, to work with foreign governments and negotiate repatriation, resettlement, have been closed, or are without any real capacity or authority to negotiate transfers. There are these government reviews that, again, were also set up under the Obama administration, that had been reviewing the individual detainees and approving some for transfer. Those reviews have become meaningless. I mean, they are still happening in form, but absolutely no substance.

But the bottom line is, even if someone were to be cleared through that process, it wouldn’t matter, because no one is going anywhere, and that’s, again, demonstrated by the fact that five people who have been approved for transfer are still sitting in Guantánamo, and there’s just been no movement at all. So we’re looking at both his clear statements about Guantánamo, and more broadly the statements he’s made in other policy areas, the animus he’s demonstrated toward foreigners, towards Muslims, the statements that have motivated and played out in policy, and saying that it’s clear that that is the case here.

Newsweek did run a column by your client Sharqawi Al Hajj, in which he asks plainly, “Am I going to die here?” I thought it was very powerful. The New York Times ran an editorial that called this legal challenge “the sharpest test yet of America’s commitment to its most important founding principles — the guarantee of due process and the right to habeas corpus.”

But this kind of anniversary editorial aside, it doesn’t seem like it gets the quality or the nature of the attention that it would warrant. And I guess I would say, let’s face it, in some ways Guantánamo doesn’t sound like such an outlier, unfortunately, to people. We have cops from Chicago going to Guantánamo to train them, you know. Why do you think it still matters so much?

You are absolutely right that in many ways, Guantánamo is just an extension of what’s been happening in the criminal justice system in the United States forever in terms of targeting people of color, in terms of torture, in terms of secrecy, in terms of imprisoning people for life for nonviolent offenses. So that background is absolutely important and informs what we’re seeing at Guantánamo. I think Guantánamo is a particular combination of root, systematic problems that have existed here forever. I think that Guantánamo matters because it is one of the most overt, I think, extreme manifestations of US torture and punishment, the excessiveness of how we punish — and how we target — minorities, black people, Muslims, foreigners. And I think it’s a symbol and a living example of all of that. I think it matters for that reason.

We’ve been talking with Pardiss Kebriaei, senior staff attorney at the Center for Constitutional Rights. You can follow their work on this challenge and on other issues online at CCRJustice.Org Pardiss Kebriaei, I thank you so much for joining us today on CounterSpin.

Thank you so much for having me, Janine.