Sharqawi Al Hajj has been detained at Guantanamo Bay since 2004. Prior to that, he was tortured by the CIA over the course of two years, as acknowledged by a district court judge in 2011. “He was beaten, subjected to threats of electrocution, held in darkness, subjected to ear-splitting sound, held in isolation,” Pardiss Kebriaei, his lawyer, told me. The U.S. government has never charged him with a crime.
There are currently 26 men being held without charge or trial at the detention center at Guantanamo. Nearly all, like Al Hajj, have been held for 15 years or more, whether at Guantanamo or other U.S. facilities. They will almost certainly continue to be imprisoned there for the remainder of President Donald Trump’s time in office, barring judicial intervention, at which point they will have been detained by the U.S. government for as long as their youngest guards will have been alive. These inmates, who have been designated as too dangerous to release but not prosecutable, are known colloquially as “forever prisoners.”
The harsh reality is that in the years since 9/11, the United States has created a system of perpetual detention that amounts to a de facto sentence of life in prison without charge or trial. The system has been overseen by both Republicans and Democrats, and blessed by the judicial branch. Although the Supreme Court has found that Guantanamo prisoners have the right to challenge their case in court, appeals court judges have repeatedly sided with the government when it comes to the legality of extended wartime detention.
But a new court challenge, brought by Kebriaei and her colleagues at the Center for Constitution Rights, could upend the status quo and signal the largest shift in U.S. military detention policies in years. They recently filed a case on behalf of 11 of the forever prisoners, and if they prevail it will almost certainly have ramifications for many of the remaining 41 detainees.
Al Hajj is one of the plaintiffs in the challenge, known as a habeas petition. “The basic argument is regardless of whether there was authority at one time to hold these individuals, at this point, over 15 years after the fact of their capture and initial detention, that authority has evaporated,” Kebriaei told me. “It’s as clear as it’s ever been that their detention is indefinite and perpetual, and that is unlawful and illegal under the domestic statute that authorizes their detention, the [Authorization for the Use of Military Force], and international law.”
The AUMF was passed in the days after 9/11, and continues to be the underlying legal basis for nearly all of the U.S. government’s continuing counterterrorism operations across the globe. Key to the lawsuit is Trump’s own promises, via Twitter, not to transfer any detainees out of Guantanamo Bay. “There’s no way to have fair process when the chief executive is taking that position publicly,” said Kebriaei.
The question of how the United States got to the point where permanent wartime detention became the norm traces through three administrations, and both civilian and military courts. But if there was ever an off-ramp from this situation, that moment was probably in 2007, according to Chris Anders, senior legislative counsel at the ACLU.
Then-Senator Tom Harkin, Democrat from Iowa, introduced a bill that would’ve forced the Department of Defense to determine which captives in its custody could be tried in a regular civilian court, and which couldn’t be. Those that couldn’t be tried would be transferred overseas to countries where they wouldn’t face torture. “That bill very much represents the position of ACLU and human rights groups,” Anders told me.
“Harkin did a lot of outreach, a lot of work to get senators on the bill,” said Anders. This was during the Democratic primary, and “there were quite a few Democrats running for president. One of them was a guy named Barack Obama, who actually did not, despite pushes, sign on to the bill. That should have been a signal to everyone about where an Obama administration would head.”
As a candidate, Obama railed against Guantanamo and famously signed an executive order to shutter it as one of his first actions in office. But as president, Obama allowed the practice of indefinite detention to linger. He aimed to close the detention facility at Guantanamo, but stopped well short of what critics on the left argued the Constitution demanded: trial or release. While Congress very quickly moved to hem him in, advocates say Obama had the unilateral ability to enact the provisions in the Harkin bill when he took office. Instead, Obama tried to move remaining detainees determined too dangerous to release but too difficult to try to the Thomson Correctional Center in Illinois in the United States. And even in that he failed, blocked by Congress.
Yet for all of the shortcomings of Obama’s method of unwinding Guantanamo, there were many actions to praise. Following a hunger strike in 2013, he ordered special envoys at State and Defense to increase their efforts to find countries willing to accept transferred detainees. He revived the long-stalled Periodic Review Boards, an administrative, not legal, process that recategorized dozens of detainees as releasable.
And Obama did honestly inherit a mess, especially where Guantanamo was concerned. Republicans in Congress made transfer to the U.S., even for medical reasons, impossible. They imposed elevated requirements on the Secretary of Defense to sign off on transfers, which then-Secretary Chuck Hagel balked at, ultimately resulting in his resignation. By that point, most of the Democratic actions in Congress were to protect existing transfer authorities from Republican attacks.
Under a Trump administration, it’s virtually impossible to see the population of the prison sinking considerably. Already, five men who were cleared for transfer prior to his inauguration have been stranded there for more than a year. The special envoys offices have been gutted, and the administration recently missed a deadline to transfer a detainee to Saudi Arabia as part of a plea deal. For Al Hajj and “the men who joined this petition, they see this action as their last hope,” said Kebriaei.
This case still has a long way to go before it reaches the Supreme Court, if it makes it that far. The plaintiffs have an uphill battle, as law professor Steve Vladeck noted recently. But as Vladeck told me, that doesn’t mean it’s dead in the water. He cited a major Supreme Court case, 2004’s Hamdi v Rumsfeld, which authorized limited military detention. “As the plurality recognized in Hamdi, detention until the cessation of hostilities is not supposed to be perpetual detention—and that, as Justice [Sandra Day] O’Connor put it, if the facts on the ground change enough over time, the understanding of international law on which the government’s claimed authority depends ‘might unravel.’”
As government officials have said for years, the post-9/11 wars could last for generations, which means that what Vladeck calls the “notoriously vague” principle “that detention is lawful until the ‘cessation of hostilities’” might not be the most effective way to limit such detention.
“At least as a policy matter, it seems to me that we’re better off adopting an approach to detention that depends upon periodic assessments of an individual detainee’s own dangerousness—and that’s where the Obama administration was heading by the end of its tenure,” Vladeck said. “But I’m not holding my breath that the Trump administration will follow suit.”