Thomas B Wilner is the managing partner of Shearman & Sterling's International Trade and Global Relations Practice. In addition to this, Tom was one of the few lawyers who spoke out against the miscarriages of justice occurring at Guantanamo Bay and fought for the protection of the fundamental constitutional rights of detainees there. He was involved in landmark US Supreme Court cases, including Rasul v. Bush, Boumediene v. Bush, and Al Odah v. United States. To date, Tom continues to fight for justice and the rule of law, defending Khalid Qassim who is still being held without charge at Guantanamo Bay.
CJLPA: Welcome Mr Thomas Wilner. Thank you very much for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art to discuss your remarkable work in representing Guantanamo Bay detainees and leading landmarking cases before the US Supreme Court to fight for their release. We would like to begin by asking you how you got involved and why you decided to take on the cases representing the Kuwaiti detainees at Guantanamo Bay?
Thomas Wilner: I first became aware of Guantanamo shortly after it opened in January 2002. Of course, at this point, the world had not known the truth about Guantanamo. In our eyes, it consisted of prisoners, factually known to be terrorists and responsible for 9/11.
In March 2002, I was contacted by a headhunter in Washington on behalf of twelve Kuwaiti families, to see if I would be interested in representing them. I was told they didn’t even know where their kids were. I then went to Kuwait with Kristine Huskey and, while we were there, the US government told the Kuwait government that eight Kuwaitis were at Guantanamo. The Red Cross then informed Kuwait that the other four were there as well.
When we met with the families, they had prepared files on the backgrounds of their kids, many of whom had a long history of going to different Muslim countries to do charitable work. Somebody at that time had called in from Pakistan, and said that three or four of these kids were sold for bounties—they were selling Arabs for bounties. It was the first time I had heard about the bounties. I obtained a copy of a bounty leaflet, which was distributed by the United States in the area.
We had included it with our Supreme Court brief both times. It said, ‘Feed your family for life. Turn in an Arab terrorist’, and we found out they were paying between $5,000 and $25,000 dollars for ‘Arab terrorists’.
CJLPA: What was the experience like, meeting the families in Kuwait especially, after having believed that the US Government were capturing dangerous terrorists, when actually the first Arabs spotted at the wrong place and the wrong time (their children) were sold for bounties?
TW: I’ll tell you about one of the most moving experiences of my life, as a lawyer. The father of one of the detainees, Khalid Al-Odah—let me say a little bit about him. Khalid was a pilot, a colonel in the Kuwaiti Air Force, and trained in the United States. In fact, during the last Gulf War—he was out of the Air Force, he had retired—he was an underground fighter with the United States against Saddam Hussein. He looked at me in the room and he said: ‘You know, Tom, my whole life I have wanted us to be like the United States and to follow the principles of the United States. For four months I have tried to just have a meeting so my son, Fawzi, can get simple justice’, and he started to cry. He said: ‘I had lost faith in the United States, and, Tom, you restored my faith in the United States’.
This was towards the end of April 2002.
CJLPA: What happened next?
TW: We came back to the US and drafted and filed a complaint in District Court. The Center for Constitutional Rights’ complaint had been a straight habeas corpus complaint, asking for immediate release. We thought it was wiser to file a normal civil action suit asking for basic due process rights—the right, first, to have lawyers; to have contact with families; and for a fair hearing. That relied on habeas corpus, the essence of which is a fair hearing before an independent tribunal.
It is important to understand that hearings are particularly important for the people detained at Guantanamo. None of these people were captured on a battlefield, and they weren't wearing enemy uniforms. They were all dressed as civilians and, in fact, many were simply innocent civilians turned in for bounties or taken by mistake. You need a hearing to see if there was a reasonable basis for detaining them—to distinguish the bad guys from the innocent men detained by mistake.
In fact, the Geneva Conventions and our own military regulations require that a hearing be conducted right in the field if there is any question about whether the person should be detained. The military conducted those hearings in the first Gulf War and, on the basis of them, released the large majority of the people it initially detained. We understand that the military wanted to hold those hearings in the Afghan conflict, but the Bush White House refused to do so. As a result, every Arab sold into captivity was simply assumed to be a bad guy and shipped off to Guantanamo without a hearing.
CJLPA: Which case did you file first?
TW: The CCR case was Rasul v. Bush. Ours was Al Odah v. United States. They were combined but for the Supreme Court, we put Rasul first. People refer to it by the first name. The Rasul case was two Brits and two Australians, a very sympathetic sort of people, our closest allies. For the Court’s perception, you weren’t talking about Arab nations—you were talking about Britain. That was the strategic reason for Rasul to go first.
CJLPA: Can you discuss your legal strategy in this case?
TW: From the beginning, we saw our strategy as multi-pronged. We wanted a fair day for these guys in court, but I really did not think that the court tactic was the solution because it would take so long and would be hard-fought. Initially, I thought what we were fighting for was just this basic American principle that everyone has a right to defend themselves and that you cannot throw somebody in prison without giving them a fair hearing.
So instead, I thought other avenues could help change the government’s minds. I thought we’d pressure the US government diplomatically on behalf of the Kuwaitis and, hopefully, other countries would also apply pressure for their citizens. I also thought that Europe would apply pressure because it was a fundamental breach of human rights. Finally, I thought that the press would be trying to teach people that there was reason to doubt that these were all ‘bad guys’, and the essential right to a hearing was at stake.
CJLPA: Did any of these avenues work?
TW: I’ll deal with the diplomatic aspect to start with because, in a way, it is the simplest and most short-lived. The government of Kuwait has fabulous ambassadors. They were told and assured by the US government that: ‘These men at Guantanamo are bad men. Stay away’. They would feed them this information and make it very difficult for the Kuwait government. So, it became very tough to get them to do anything. And, of course, a country like Kuwait is totally dependent on the United States, although we depend on them to invade Iraq and do other things.
Then, there is the press aspect. The press part was very difficult. I have always been disappointed in that. I was appalled that people weren’t getting a fair hearing. Tony Lake, former National Security Advisor, and Abner Mikva, former counsel to the President, wrote an Op-Ed on it, but The New York Times and the Washington Post refused to print it.
This just shows the terror, the fear, that was instilled at the time. It was finally printed in the Boston Globe, but with very little care, and so it was sort of ignored. Before this, I always had a faith that, somehow, the press would step forward and condemn bad things when they happened, as they did in the Pentagon Papers and Watergate. I thought there were controls like that. So when people would not stand up and say things, I was shocked.
Another story, which is still incredible to me: about this time, I talked to a producer at 60 Minutes, who was interested in doing a story about Guantanamo, questioning whether all these people should be detained. After about two weeks, she called me back and said the network decided it didn’t want to do the story because ‘it was too political and controversial’. Can you imagine that? CBS was unwilling to get involved because the issue was too political and controversial.
It became clear to me at this point how the hysteria of 9/11 caused the country to lose its way and lose its way for a pretty long time. I previously had always believed that we had checks in our society that would stop real excesses. Maybe I was naïve about that, but I was surprised at the way the press did not work as a check. They really, by and large, did not question the Bush administration. There was no opposition party willing to stand up; the law schools and student bodies remained silent.
CJLPA: With the press refusing to print the essential information you had on Guantanamo, I assume the public still did not know the truth about Guantanamo at this point in time?
TW: That’s correct. I remember, at one party, somebody saying to me: ‘Tom, it is very hard for us to understand. You say the facts are that there is nothing on these people. But the government keeps telling us that these are all bad guys’.
Without the press or Congress investigating it, there was no way for the public to know. It was like shouting in the dark. I tried to get some facts out, for example, about the bounties. I found out from an insider from the National Security Council in 2004, six months before the presidential election, that the Central Intelligence Agency had done a report in 2002 which showed that most of these people at Guantanamo shouldn’t be there. It was closeted; nobody could get to it. I got the name of the person who wrote the report—the CIA agent, but they would not testify voluntarily. They were prohibited from doing so.
But they could have been subpoenaed. I tried to get Congress to subpoena this person and they wouldn’t—even the Democrats wouldn’t help. They never subpoenaed that guy for a closed session to learn the facts. It was very hard to get the facts out.
Still, to this day, people do not know.
CJLPA: Reflecting back, why do you think no one spoke up, no one scrutinised or challenged the Bush administration? Why were people so quick to accept this corrupt and illegal prison?
TW: It’s interesting. I remember sitting once, at a table with two young law school professors. I looked at them and said: ‘I’m from the Vietnam generation. If something like this were happening, our law schools would be exploding. We wouldn’t tolerate this. Why aren’t you complaining? What’s going on?’ After a while, they looked at me and said: ‘You’re right. But we’ve got two young kids, and we’re afraid’. I thought—I read stuff like this on the rise of Nazism in Germany, and it just chilled me.
Silence, in itself, is a betrayal. I would go to cocktail parties and people would sit around drinking and laughing, and I would think, what were the Germans doing when Hitler came to power? Were they all laughing and drinking, as these things were going on? I knew we had people in a concentration camp, innocent people, and we’re sitting and drinking.
CJLPA: At this point, the diplomats failed them, the media failed them, and the law schools failed them. The burden was on you to not only expose the reality about Guantanamo Bay that the Bush administration fought so hard to conceal from the public, but also, to help find a way to get your clients released. What happened after you filed the case?
TW: The government filed a response. The government’s argument was very straightforward. The government argued that because the detainees were non-US citizens and were being held outside the United States, they had no rights and no right to go to court. They based that argument primarily on Johnson v. Eisentrager, a 1950 Supreme Court case which had involved the case of twenty-one Germans who were convicted of war crimes after World War II. This case had held that a habeas case challenging convictions in a military court, by Germans overseas who had never been in the United States, could not go forward.
The government’s argument was that the detainees do not have a right to habeas corpus because at no time were they present in a place over which the United States has jurisdiction. They were ‘outside the sovereignty of the United States’. Confusing language. The government therefore compared it to Eisentrager, asserting that aliens—non-US citizens—without property or presence in the United States have no constitutional rights and no access to our courts.
The interesting thing here was the formalism. The government’s argument really played into the weakness of lawyers. Lawyers tend to think in boxes, and there is a conventional assumption among lawyers in the United States that all rights come from the Constitution of the United States. But this is not true.
We argued that, before there was a Constitution, there was the right to a fair procedure and a fair hearing. The fundamental rule of law was established in the Magna Carta, that ‘no free man can be deprived of his liberty or property, except in accordance with the law’. Habeas corpus was developed by the courts to enforce that—you cannot be thrown in prison except in accordance with the law, which means there needs to be a law you are accused of violating, and there has to be a factual basis for thinking you did it. This concept existed long before the Constitution. So the issue actually was why people need to have constitutional rights to have a right to a fair hearing. It was a right under the common law before there was a Constitution.
It was formalistic. Formal distinctions were being used to deprive people of a fundamental fairness—a fair hearing. Somebody could reach beyond that. I had no doubt that the judges who used to be on that Court, not just liberal judges but good judges, would have cut through this.
CJLPA: But they didn’t. In 2003, the Court of Appeal decided in the government’s favour. What were your next steps?
TW: We looked into the possibility of getting cert [certiorari] on the case. In fact, I think one of the great accomplishments of the whole legal effort was getting the Supreme Court to take cert in Rasul.
CJLPA: How did you and your legal team accomplish this?
TW: In order for the Supreme Court to take a case, it must raise a major issue.
So, we tried to make the case a major public issue. We tried again with the press and this time, we were luckier. We got a break—the 60 Minutes II interview aired just about that time. Also, I got an Op-Ed in the Wall Street Journal.
Once we got the press involved, we wrote the petition to get certiorari. We emphasised the consequences of denying cert, namely that:
If the Court accepted the government’s argument, it would allow the executive to be able to manipulate the law. It would give the executive the ability to say when the Court can and cannot review a case.
By simply moving across a geographic line, just by imprisoning foreigners outside the US, the US government could deprive the Court of jurisdiction and deprive people of constitutional rights. In other words, the Court gives the executive branch the unilateral power to manipulate the jurisdiction of the courts and to avoid judicial review of its own actions. That violates the basic separation of powers concept established by the Constitution.
If the Court approved this, the US would become an outlier among the community of civilised nations, depriving people of hearings.
The Eisentrager decision the Government relied upon was written by Justice Jackson. Justice Jackson, a few years later, had written a dissent in a case called Shaughnessy v. Mezei [1953] in respect to a law passed that allowed the government to deport immigrants entry to the US without due process. Jackson stated: ‘It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone’. We drew the analogy and relied heavily on Justice Jackson’s opinion in that case.
Finally, another argument that I think resonated with the Court came from an interview I had done with CBS. As it turned out, iguanas at Guantanamo were protected by US law. Iguanas had stronger protection than living beings at Guantanamo.
CJLPA: What was the result of this?
TW: We successfully got cert. And after we got cert, we then argued the case in court and won the landmark case with the Supreme Court.
CJLPA: What happened after you won Rasul?
A: Right after Rasul, we really thought we had won the case, that we had won what we were after—a fair hearing before a neutral judge for the people at Guantanamo, to see whether there was any basis for holding them there. The story after Rasul is a legal story.
Nine days after Rasul, the Department of Defense instituted a sort of administrative review process at Guantanamo called the Combatant Status Review Tribunals [CSRTs]. Deputy Secretary [Paul D] Wolfowitz issued an order saying they were doing this as part of internal management, and set up panels of three officers—colonel and lower level—to review the decisions that these people were enemy combatants.
From the outset, it was clear that these were- sham proceedings. In about ninety-two percent of the cases they just confirmed the decisions that had already been made—that the people were enemy combatants. The detainees were not allowed to see any evidence against them that was classified, and almost all of it was classified. They were not allowed to present evidence on their own unless the CSRT panel said it was reasonably available, and they almost never found that it was reasonably available. Nobody was allowed to call a witness who wasn’t in Guantanamo, and three-quarters of those requests for witness at Guantanamo were denied. It was a joke. When the CSRT panel found that somebody was not an enemy combatant, the government had new panels convened until they found that they were enemy combatants.
Anyway, these were the proceedings given to the detainees. Some of the new lawyers in the case filed to participate in those proceedings. We opposed that.
CJLPA: Why did you oppose this?
TW: We opposed it for three reasons. First,- they were going to lose. Second, in losing, it would sanctify the process as meaningful. And third, whilst a few detainees were ‘cleared’, it soon became clear that in most of those cases, the government would have a do-over panel.
CJLPA: How were these military panels justified, in light of winning Rasul?
TW: The government argued that, even though we won the right to go to court under the Rasul decision for habeas corpus, in order to obtain relief for habeas corpus, the detainees would need to show that their constitutional rights have been violated. Because these detainees are foreigners outside the US, they have no constitutional rights. They should be thrown out of court. And, in any event, they asserted that, whatever due process rights they have, they are more than satisfied by these Combatant Status Review Tribunals.
As I said earlier, the argument was premised on a different box that lawyers fall into, which was a real lack of understanding of what habeas corpus meant.
CJLPA: What does habeas corpus mean?
TW: Habeas corpus, since the Civil War, had really been to protect freed black men and women from being held by a state in violation of the Constitution. Before that, habeas was what I call the ‘Tower of London’ habeas, where somebody is thrown into the Tower of London on the whim of the King without basis in the law. Habeas was the procedure that required the government to demonstrate there was a lawful basis for the detention. Habeas preceded the Constitution—it had nothing to do with the Constitution.
But, interestingly, most lawyers—as did the courts—fell into that trap—that to win in habeas, you had to show a violation of the Constitution, because habeas proceedings in the United States for the past 150 years had been conducted to remedy a violation of the Constitution.
CJLPA: Did you go back to court?
TW: Yes. Numerous cases were filed after Rasul and the courts consolidated ten cases under the name Al Odah.
We argued that based on the Rasul opinion, it was clear that these people in Guantanamo did have constitutional protections, because the Court had determined that Guantanamo was in the territorial jurisdiction of the United States. We therefore argued that constitutional rights applied to people within the territorial jurisdiction of the United States.
More importantly, however, irrespective of whether the detainees had constitutional protections, we further argued that the petitioner’s right to habeas does not depend on constitutional rights. The right to habeas was antecedent to, and not dependent on, the Constitution.
CJLPA: Did the court agree with your legal arguments?
TW: Judge Green, who had the ten consolidated cases, agreed. Judge Leon, who had not consolidated another case, the Boumediene case, ruled the other way. At that point, Judge Green entered a stay of all the cases, pending the outcome of the appeals. Then we had to go up to the Court of Appeals, and it was an amazing process. I think we had three separate arguments before the Court of Appeals because of all the things that developed in the cases.
I argued for the Al Odah group of cases, and Steve Oleskey argued for the Boumediene one. It was a seminal argument on what happened in the case, and, to me, it shows one of those few times when oral arguments can really make a difference. Although we had very clearly written why you did not need constitutional rights to be able to have habeas relief, it was clear to me when we got up to argue that the court of three judges—Judge [Raymond] Randolph, Judge [David B] Sentelle, and Judge [Judith AW] Rogers—were trapped in the same conventional wisdom that habeas relief requires a violation of constitutional right.
I posed two questions to them to try to demonstrate that was wrong: Let’s say the government passes a law saying it can arrest and detain all red-headed people. You could challenge that as being unconstitutional, but you can also go in and say: ‘I’m not red-headed. You’ve made a factual mistake’. It had nothing to do with the Constitution. They started to get it. Let me give you another example. Let’s say we’re in a war with Japan, and the government passes a law saying we can detain anyone of Japanese descent. This is, of course, the Korematsu case [Korematsu v. United States, 1944]. Let’s say somebody goes into court and says: ‘That is unconstitutional. It’s a violation of equal protection’, and the court says: ‘It’s allowed’. Let’s say another guy comes in and says: ‘I don’t care about the Constitution. You’ve got the wrong guy. My name is not Hara, it is O’Hara. I am Irish, not Japanese’. This is purely a factual question. It has nothing to do with the Constitution.
Habeas is a procedure that addresses factual as well as legal and constitutional errors. The judges got it.
We clearly won the argument.
CJLPA: What happened next?
TW: We argued that in September, and we were probably down in Guantanamo at the beginning of November. While we were down in Guantanamo, I heard that a provision had been introduced in Congress to revoke the right to habeas corpus. I came back and fought it.
CJLPA: After a strong argument in court which looked like it would go in your favour, the government interfered by trying to amend the relevant law?
TW: Yes. When the government also thought they had lost the argument against us, they went to Lindsey Graham, who put an amendment onto the Defense Appropriation Authorizations bill at that time, November 2005, to revoke the writ of habeas corpus for detainees at Guantanamo. I had feared this would happen.
I remember we had had a call earlier, with all the new habeas corpus lawyers—as we often did—talking about the brief. Somebody was saying that: ‘We should go to Congress and press them on this’, and I said: ‘Leave Congress alone. It’s a Republican majority. I don’t want to stir them up. Let the courts handle this. I’m confident that if they ever get the courts to rule, we can win on this’. Then I remember this colleague saying, ‘Oh, they’re surely not going to revoke habeas corpus. It’s one of the most ancient writs there is’.
Congress voted to change it. The change took out some language in the effective date provision dealing with habeas corpus that was in the other parts of the bill.
Then, the case of Hamdan [v. Rumsfeld, 2006] had reached the Supreme Court. In Hamdan, the Supreme Court decided that the revocation of habeas only applied prospectively. It also decided that the military commissions system, as set up, was constitutionally deficient and contrary to other laws already on the books. So it basically said: ‘If Congress wants to do this, it’s got to change the laws’.
CJLPA: And Congress did?
TW: Yes, Congress did. It went right back and revoked habeas corpus retroactively in the Military Commissions Act. There were still some loopholes we could try to go through. But they revoked habeas corpus retroactively and changed the military commissions system.
CJLPA: What was the morale like at this point? It seemed that even with every win in court, the executive would interfere with justice to ensure you would not win.
TW: I remember one of the Kuwaiti detainees, prisoners, a brilliant guy—Fayez Al-Kandari—told me: ‘Tom, I think you’re a great lawyer and a great guy, but I got to tell you, the law is not going to win this. We’re not going to get out of here until the US President decides we should get out of here. They’ll always find a way to keep us here’. And that’s what’s happened.
And it’s a great disgrace for the law. I mean, we talk about the rule of law.
CJLPA: Did you ever bring violations of international law as an argument to the courts?
TW: No, it was not a strong argument. Actually, Michael Ratner and his staff at CCR would push arguments that were irritating to the courts, and have no chance of winning. Specifically, Geneva Convention arguments. No matter how strongly you might believe in them, the US courts are not going to simply defer to international law. On the other hand, there are times when Congress incorporates international law into US law. Then, the courts will or should pay attention.
CJLPA: What was most challenging at this point in the litigation?
TW: To me, the most difficult thing after Rasul was not being able to make decisions that I was convinced were in the best interest of the client because the Court was requiring us, on behalf of these ten cases, to file one brief. We couldn’t split into a separate brief. We had to make one argument, file one brief. We had to do all these things.
We did have another series of briefing and arguments to the Court of Appeal and as expected, we lost on that 2-1, with Sentelle and Randolph voting against us, and Judith Rogers voting for us. We then petitioned for cert again, and the Supreme Court denied it in April 2007.
I was heartbroken. I thought the Supreme Court would grant cert, as everyone did.
CJLPA: What did you do next?
TW: We put the Boumediene case name first in our petition to the Supreme Court because of some good facts in that case. The case is now known as Boumediene. The team continued to exhaust available remedies, gathering evidence and reports. We drafted a brief, that was about three or four pages long, and we attached a Military Intelligence officer, Colonel Abraham’s declaration admitting the CRST panels were a sham. The Supreme Court eventually reversed itself and granted cert.
It was monumental! My own view is that the Abraham declaration, which has been credited with the grant of cert, was not the reason. I think it was really the government’s performance in between. It had been so outrageous and overreaching that it irritated the Court, including Justice Kennedy, who was the key vote.
CJLPA: What was the outcome of this case when it finally got to the Supreme Court?
TW: The Court, in Boumediene/Al Odah in June 2008, concluded that Congress could not revoke the detainees’ right to habeas because they are entitled to habeas under the Constitution. It ordered that these people are entitled to prompt habeas hearings. At that time, all my remaining clients had been released, which put me in an odd position.
CJLPA: Why were all your clients released?
TW: They were released not because we won the Supreme Court cases, but because the government just decided to release them after years of detainment. They sent them back home.
CJLPA: What occurred next?
After the right to habeas corpus was extended, a significant percentage of detainees won their habeas cases in the district court. However, a 2010 opinion from the DC circuit by Judge Randolph countered this success, stating that while detainees might have the right to habeas corpus, they don’t have the right to due process.
Judge Randolph’s statement that Guantanamo detainees have no right to due process in the habeas corpus hearings to which they are constitutionally entitled is, frankly, absurd. Habeas corpus grants the right to a hearing. Due process ensures that the hearing will be fair. As Justice Scalia wrote: ‘Due process [is] the right secured, and habeas corpus [is] the instrument by which due process could be insisted upon’. Without due process, habeas corpus is a sham. Yet the DC Circuit allowed this absurd statement to control habeas proceedings for more than a decade and, after finally taking the issue up en banc, and pondering the issue for more than a year, decided not to decide it. It’s just extraordinary.
If judges will not act to safeguard individual liberties, who then will?
CJLPA: To date, are you still involved in any litigation involving Guantanamo?
TW: Yes, I represent Khalid Qassim. I’ve had him now for seven or eight years. We got him originally to contest the ruling that they have no due-process rights. It’s interesting because you can’t win a hearing if you can’t contest the allegations against you. You don’t know the basis for them. The allegations against this man, Qassim, are basically that he was a foot soldier 20-some years ago after 9/11 in the battle of Afghanistan. That’s something he denies vehemently, but he can’t see who’s making the allegation. So we wanted for him to have the right to do that.
CJLPA: Where does this leave Qassim now in respect to his prospect of being released?
TW: In June 2019 we won a case before one panel of the DC Circuit saying that the detainees should have the right to due process. Then another panel in another case held the other way, and it’s still sitting there.
Then, shortly after the last US soldier withdrew, we filed a motion for summary judgment asking the court to release our client, Khalid Qassim, arguing that the end of the armed conflict ended the government’s legal authority to detain him and the others like him who were taken into custody not because they were allegedly terrorists but because they were essentially foot soldiers in an armed conflict that is now over.
We were unable to get a hearing on our motion until early December last year (mainly because the Al Hela case over the question whether the detainees were entitled to due process was pending before the en banc DC Circuit). The hearing was before Senior Judge Thomas Hogan, who had been the presiding judge since Neil Koslowe and I first became involved in this case about seven years ago. The hearing was long, held both in open session and in closed session to consider classified data, and it went very well.
At the end of the closed session, Judge Hogan thanked me for presenting new arguments that cast additional light on the key issues, and he promised to write an opinion deciding the motion.
Following the hearing, we submitted a short post-hearing memorandum summarising our basic legal arguments and responding directly to questions the judge had asked during the hearing whether these arguments had been raised in other cases.
In summary, we said habeas corpus remains the single most important protection of individual liberty in Anglo-American law—it is what Blackstone called ‘The stable bulwark of our liberties’. But it depends entirely on judges being willing to carry out their critical responsibility to ensure that no person is deprived of liberty without legal authority. Judges have been unwilling to accept that responsibility at Guantanamo. We pointed out that, based on the Supreme Court’s opinion and acts of Congress, the end of the armed conflict ended the legal authority to detain Qassim.
The judge gave the government until the end of February to respond, which it did (a day late). We then waited anxiously for a decision.
CJLPA: What was the decision?
TW: Toward the end of July, we approached government counsel to consent to a status conference before the judge, and we were informed that the case had been reassigned from Judge Hogan to Senior Judge Richard Leon. We still have no idea why.
Whatever the reason, however, we were extremely disappointed to learn that this case that had been fully briefed and argued and was ripe for decision had been reassigned to a different judge, that much time had therefore been wasted and we essentially had to start over, and that Qassim’s legally unauthorised detention would not only continue but be prolonged for many more months.
CJLPA: What did you do next?
TW: To avoid further delay, we immediately moved to present an oral argument to Judge Leon. He promptly denied the motion in a one-sentence minute order: ‘Upon consideration of petitioner’s Motion for Hearing and respondents’ Response, it is hereby ORDERED that the motion is DENIED’. Judge Leon apparently believes that oral argument would not be helpful to him in deciding this case, which had been pending before him for seven months.
CJLPA: Has Judge Leon since made a decision?
TW: Yes. After refusing to hear the oral arguments, Judge Leon issued a short opinion at the end of last week denying our motion for release based on the end of combat. He did so without even addressing our arguments. Another striking example of denial of justice at Guantanamo and of the refusal of the courts to carry out their fundamental responsibility to safeguard individual liberty from arbitrary government detention. We are seeking ways to appeal.
CJLPA: That’s outrageous. I don’t understand how, given the public knowledge that the US government captured and kidnapped prisoners who we know are not ‘terrorists’, they are not immediately released?
TW: It is absolutely outrageous! They were never charged. That’s why the US government never claimed them to be terrorists. The important thing about Guantanamo Bay is that they are not claiming them to be terrorists. Everybody confuses that. And because they were never charged, they cannot be heard in court.
CJLPA: Further to my previous questions, despite the clear illegality, Guantanamo Bay remains open. How is this possible?
TW: Dating back to 2008, I met with the Obama administration and helped write their order saying that they would close Guantanamo within a year. I then worked with Greg Craig who was the counsel of the White House. He’s a great guy. To close Guantanamo, the US had to get other countries to accept the detainees, but also, within the US as well. The first detainees we considered were Uyghur detainees, who had been, quite clearly, captured by mistake.
Greg had negotiated a deal to locate the Uyghurs into northern Virginia where there’s now a larger Uyghur community. When Frank Wolf heard about it, that was the beginning of the politicisation. He made various public comments such as: ‘How can you let a terrorist into our territory?’.
What was President Obama’s response? Rather than saying: ‘Listen, everyone knows these guys are innocent and have been deprived of their liberty for all these years’, instead, he backed away.
Then, the Republicans smelled blood and they imposed all these restrictions on the President’s ability to transfer people. The restrictions included not transferring anyone in the United States, or to Yemen or certain other countries, needing to get Congress approval, etc. It made the process extremely difficult and a pain. So, Obama’s administration didn’t do it because the political pressure pushed them away.
I then again met with the Biden administration at the beginning, and I’m telling you, I know they want to close Guantanamo. I corresponded with Tony Blinken, and he is a great guy, Secretary of State. But again, they’ve got a 50-50 Senate and a long list of priorities. Before these political administrations, 30 foreigners at Guantanamo don’t rise very high.
There’s always something more important. You can’t count on the political branches. At the end of the day, you need the courts, and I never thought the courts would be the answer here. They’re the branch whose duty it is to safeguard individual liberties in accordance with the law. But the courts are very divided now too, and they’re affected by politics. They’ve been such a disappointment.
CJLPA: How did the rule of law and the US justice system become so grossly deprived?
TW: The court did not step in when it needed to. The court deferred to the government on everything, even when the government, time and time again, was proven to either be lying or at least not know what was happening. The court put up with it. So we were fighting the government, but the court put up with it at every stage. So I am terribly upset with the courts. People lost any faith in the American judicial system and, honestly, so did I.
The whole purpose of Guantanamo, in the administration’s mind, was to create a law-free zone. The Bush administration proceeded from the premise that the laws were an impediment to fighting the war on terrorism. They felt they had to avoid the law—and lawyers—in order to fight the war on terrorism.
CJLPA: In the name of fighting terrorism, do we need to sacrifice justice for safety?
TW: No. What the executive branch never understood was that the laws are compatible with our security. Being a nation of laws and following the laws makes us stronger in fighting terrorism. Guantanamo is a symbol, a place where you can avoid the law. But that has stained our reputation and hurt us around the world.
Embracing the laws allows the executive to do everything it needs to for safety if they just follow the law. The law ensures that, if there is any doubt, you give them a hearing. Big deal. The only reason there would be no hearing is because there is fear: fear that they are innocent. The laws protect the innocent. But more than that, it protects justice, and ensures that we are a nation governed by law and justice and not by passion and revenge. I was fundamentally upset that the courts tolerated law-free zones.
The government’s intimidation, in violation of their own rules, was unreasonable. They operated in pretty much a law-free zone—and the press was extraordinary. We would come out and tell them stories about what the detainees said, that they had been abused, that they didn’t have reading material. The government would simply deny it. The press was left in a situation where they often did not know, so it was hard to get scrutiny on it. And who were we? We were just advocates for ‘terrorists’.
CJLPA: On a final note, what is a key takeaway about the justice system in ensuring history does not repeat itself?
TW: Guantanamo is exceptional for any of us, and what we otherwise expect and hope our world to be—a fair and just world running according to law. I think I was, and still am, most disturbed that in a country where people espouse fairness, which much of our life is really based on, how easily people turned away from it.
Our principles, the rule of law and justice, are not incompatible with protecting our security. They make us stronger in these things. That is the right chord. How we lost our way and how people do not care is amazing to me.
But we’ve got to keep fighting.
This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.