Guantánamo | The “fragility of the legal foundations” of the prison exposed

The recent ruling by a US court forcing the administration to release an Afghan detainee held without charge for 15 years at the Guantánamo military prison highlights the legal limits of the subsequent “war on terror” of the attacks of September 11, 2001.

Marc Thibodeau
Press

It does not mean, however, that the controversial establishment is doomed to close in the near future since the Washington federal judge in charge of Asadullah Haroon Gul’s case has not questioned the fact that the United States claims to be able to detain any “enemy combatant” linked to the Taliban or to Al-Qaeda as long as this ill-defined war continues.

“The 2001 resolution authorizing the use of military force against them was based on an exceptionally broad definition of the concept of war, which therefore continues in theory 20 years later. Once the courts endorsed this principle, it became extremely difficult for detainees to challenge it, ”notes Daphne Eviatar, who heads the Security and Human Rights program of the US section of Amnesty International.

The administration of George W. Bush hoped, by choosing Guantánamo as its place of detention, to deprive suspects of terrorism of any recourse in the American justice system.

However, the Supreme Court ruled in 2008 that they could bring a habeas corpus petition to challenge their detention without charge. Only a handful of them have succeeded since then, and favorable verdicts have generally been appealed.

Mark Maher, a lawyer for the Reprieve organization that supports Asadullah Haroon Gul’s case, is optimistic that the United States will comply with the ruling this time around.

The Department of Justice, he said, can still appeal, but such an approach would seem “illogical” in the file since a committee responsible for reviewing the dangerousness of the detainee concluded at the same time, a few weeks ago, that it could be released without posing a risk to the United States.

The “fragility of legal foundations”

Asadulah Haroon Gul, 40, was apprehended in 2007 in the Afghan city of Jalalabad and handed over to the United States, which describes him as a former commander of an Islamist militia linked to the Taliban as well as a messenger. for Al-Qaeda.

The militia in question reached an agreement in 2016 with the Afghan regime supported by Western forces, which made it difficult to maintain its status as an enemy combatant on this basis.

The Justice Department, notes Maher, put this criterion aside in the Washington court and instead sought to substantiate the existence of links between Asadulah Haroon Gul and al-Qaeda, without succeeding in convincing the responsible judge.

The decision, notes the lawyer, highlights the “fragility of the legal foundations” on which Guantánamo rests, but will not necessarily benefit the other inmates of the establishment, which now has 39.

Former President Barack Obama promised when he took office to close the prison, but he never succeeded. After four years of the status quo under the leadership of his successor, Donald Trump, President Joe Biden has reiterated the promise of closure, but the situation is changing very slowly, deplores Mr.^me Eviatar.

“Beyond the declaration of principle, we have not seen many concrete actions,” said the representative of Amnesty International.

Of the remaining detainees, it has already been determined that a dozen do not pose a risk to the United States, and about 15 others are eligible for such a review.

A dozen detainees, including those responsible for the attacks of September 11, 2001 such as Khalid Cheikh Mohammed, also face military commissions.

The process before these controversial bodies is “extremely slow” and complicated by the fact that most of these detainees have been tortured at length, making their testimony problematic.

Under the Obama administration, the Justice Department was hopeful, notes M^me Eviatar, to be able to convict them on American soil with evidence that has not been obtained by torture, but the elected Republicans opposed this scenario to an end.

It is “absurd,” she says, to claim that their transfer to the United States would be problematic from a security point of view since the existing establishments are perfectly capable of supporting them.

To apologise

In an analysis published in Foreign Policy, Brookings Institution analyst Noha Aboueldahab warns, no matter what, Guantánamo’s “horrors” will not “go away just by shutting down the facility.”

The United States, he said, should notably apologize to those who have been tortured and offer financial compensation for the abuses suffered.

Even if he was also tortured, the question does not appear for the moment among the concerns of Asadullah Haroon Gul, who wants to find his family “as quickly as possible”, notes Mark Maher.

“He is still trying to take the measure of the good news he has just received after 15 years of hell,” he concludes.