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Today – January 11th – sees the fifteenth anniversary of the opening of the Guantánamo Bay detention centre, at the eastern tip of Cuba. President-elect Donald Trump has announced his intention to cease, immediately, the apparently dreadful Obama policy of releasing detainees.
To be sure, President Obama only repatriates people when six designated American intelligence agencies deem the individual no threat “to the US or our coalition allies.” Yet Trump knows better. The prisoners who remain when he takes office are, he informs us in the shorthand of Twitter, all “extremely dangerous people,” and should be held forever, without even a semblance of a trial.
Of course we have been told this before – as when Bush-era Secretary of State Donald Rumsfeld dubbed them the “worst of the worst” terrorists in the world back in 2002. It was false then, and it will be false on January 20th, even though the military will have distilled the prisoners from 779 to around 40.
President Bush repatriated 537 of the detainees; President Obama will have resettled a further 200. Reprieve has helped to secure the release of roughly 80 of these men. When Trump takes office, he will likely inherit three of our clients; if he has his way, they will be “forever prisoners”.
Even many of the detainees remaining at Gitmo have not yet been cleared, it is hard to make the case that they are all “extremely dangerous”. In any case, they should at least be given fair trials. But among the others is my client Ahmed Rabbani, a diminutive Pakistani man whose primary crime was driving a taxi in Karachi. He has now been on hunger strike – force-fed – for two years, as a peaceful protest against his imprisonment without trial.
Ahmed was never in Afghanistan fighting Americans; on September 10th, 2002, he was at work in his home town when Pakistani intelligence forces grabbed him and sold him to the Americans for a bounty. They said he was Hassan Ghul, a big name among extremists. Ahmed was spirited off to a dark, secret prison where he was tortured for 540 days and nights.
All this is detailed in the Senate Torture report. Within days of his seizure, a CIA cable reflected: “Interestingly, he denies being Hassan Ghul… While [Pakistan Intelligence] are fairly certain we do in fact have Hassan Ghul in custody, we would like to make every effort to verify.” Years later, they have verified their mistake – and yet Ahmed remains in Guantánamo. Bizarrely, on page 102, the Senate identifies him as one of the prisoners whose torture was carried out “without the approval of CIA Headquarters.” I have never been clear whether it is better that approval was given, or that the torture was carried out by rogue agents.
One of the problems we have encountered in the years since 9/11 is a failure to consider the lessons of history. For example, over centuries we developed a legal rule against torture, and yet this was jettisoned by the Bush Administration in a few short weeks. Likewise, while Guantánamo Bay is sometimes deemed a 21st century nightmare, it is also a horror from the 17th and 18th centuries. Donald Trump is proposing a return to the use of the ancient English Bill of Attainder: a procedure where someone could be condemned by politicians, without bothering with a legal trial. Its last formal use in Britain was in 1798 against Lord Edward Fitzgerald, for leading the Irish Rebellion.
When the grievances of the American colonies found their way into the US Constitution in 1789, Article I, Section 9 provided that “no Bill of Attainder … shall be passed.” Now, Trump wants to bring it back. He wants to make sure that our clients are held in Guantánamo without a trial, under a whole life sentence – based on his ill-informed and populist decision that they are dangerous and should never be released. He would not even bother with legislation; he would just give our clients a life sentence by Executive Order.
The next four years promise to be a fairly dictatorial era in human rights terms. At Reprieve, we believe it is all the more important that we protect the most powerless against the powerful.
This article originally appeared on The Huffington Post.