Guantanamo Detainee Tries to Use Obama Statements That War Is Over to Secure Freedom

Judge disagrees, defers to Trump's judgment

Guantanamo Bay U.S. Naval Base, Cuba / AP
February 23, 2017

U.S. District Judge Richard Leon ruled late Wednesday that he would defer to President Trump's administration to determine whether the United States is still engaged in "active hostilities" against al Qaeda, the Taliban, and their affiliates and has the right to hold prisoners at the Guantanamo Bay military facility.

Guantanamo prisoner Moath al-Alwi was turned over to the U.S. government by Pakistani authorities in 2001 over suspicions that he had ties to al Qaeda and the Taliban. Al-Alwi's attorneys argued in their latest effort to free their client that he is being unlawfully detained because former President Obama said in 2014 and 2015 that the U.S. combat mission in Afghanistan had ended, BuzzFeed reported Thursday.

Leon did not agree with the lawyers' argument, however, and said he would let the new commander in chief decide if the U.S. is still fighting the al Qaeda network in Afghanistan.

"Although the president announced a change in the military's focus going forward, he made clear that the United states would continue to engage in active counterterrorism operations in Afghanistan," Leon wrote.

Ramzi Kassem, a professor at City University of New York School of Law and one of al-Alwi's attorneys, told BuzzFeed they will appeal Leon's decision.

"Moath al-Alwi has been in U.S. custody for over 15 years. Neither the law of war nor any other set of laws in a civilized society should be read to permit arbitrary or lifetime imprisonment without a fair trial. We will appeal this decision because a higher court must check the president's assertion that he can continue to imprison Mr. al-Alwi and others at will," Kassem said.

Leon is not the first federal judge to reject the arguments of al-Alwi's attorneys. He is the fourth federal judge to make a ruling on the decision, according to BuzzFeed.

The U.S. Court of Appeals for the D.C. Circuit, which sets precedent for the district court, has yet to consider the issue because the detainees who brought earlier cases were transferred out before they could pursue an appeal.

Al-Alwi is one of 41 detainees still held at Guantanamo Bay. The Defense Department last transferred out a group of detainees on Jan. 19. President Trump has expressed opposition to releasing detainees, tweeting on Jan. 3:

Al-Alwi had also argued that even if there were still hostilities, his 15-year detention ran afoul of the principles of war, pointing to an earlier US Supreme Court decision–Hamdi v. Rumsfled, in 2004–that warned against indefinite detention. Leon wrote that given the current military operations in Afghanistan, Al-Alwi's detention was permissible.

"After all, 8,400 United States service members are currently stationed in Afghanistan and engage in the use of force, against al Qaeda, Taliban, and associated forces, consistent with the laws of war and in a context similar to that presented to the Supreme Court in Hamdi," Leon wrote. "To say the least, the duration of a conflict does not somehow excuse it from longstanding law of war principles."