By Nimra Azmi and Sirine Shebaya of Muslim Advocates
This month marks the sixteenth anniversary of the opening of the Guantánamo Bay prison facility. Despite longstanding bipartisan consensus that the prison must be closed, President Trump has reversed course, repeatedly expressing a blanket policy that no detainees will be considered for release or transfer, regardless of their individual circumstances. On January 11, the Center for Constitutional Rights, along with other lawyers, filed a motion seeking writs of habeas corpus on behalf of eleven detainees, all Muslim men who have been held years without charge and who now, due to President Trump’s policy, have no chance for release or transfer. Two days ago, Muslim Advocates and the MacArthur Justice Center submitted an amicus brief on behalf of a coalition of Muslim, faith-based, and civil rights organizations, highlighting how the President’s Guantánamo policy must be analyzed within the context of his anti-Muslim animus and his unwavering commitment to using the power of the Executive Branch to target and discriminate against Muslims.
Functionally, Guantánamo has always served as a prison solely for Muslims; every detainee ever confined there has been Muslim. This recognition—along with the well-documented mistreatment and torture in the facility—led both the Bush and Obama administrations to decide that the prison must be closed. Over the course of their collective terms in office, they released or transferred hundreds of detainees. But President Trump instead sees these facts as a reason to endorse and expand the prison.
Mere days before his Inauguration, Mr. Trump announced, “There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.” On the campaign trail, he proclaimed, “We’re not closing Gitmo. We’re going to fill it up! We’re not closing Gitmo.” Tellingly, he has exclusively called for Muslims to be detained in the prison. When discussing Sayfullo Saipov, the Uzbek Muslim alleged to have perpetrated the truck attack in New York City on October 31, 2017, the President stated, “I would certainly consider [Guantánamo], yes….Send him to Gitmo.” Yet, despite numeroushigh-profile attacks committed by non-Muslim perpetrators during his presidency, he has never called for any of them to be taken to Guantánamo.
President Trump’s decision to refuse individualized consideration to the remaining detainees—even those previously cleared for release under the Obama Administration—cannot be reconciled with the Supreme Court’s Guantánamo jurisprudence finding perpetual detention unlawful. However, his position on Guantánamo does perfectly align with his habitual rejection of the idea that Muslims accused of terrorism are entitled to any constitutional protections. After the 2013 Boston Marathon attacks, where the perpetrators were Muslim U.S. citizens, Trump tweeted, “Will Barack Obama personally read the Boston terrorist his Miranda Rights?” On another occasion, he derided the Fifth and Sixth Amendment rights of Muslims suspects, tweeting, “Our politically correct country will read the ISIS terrorists who beheaded the reporter their Miranda Rights prior to good food & care!”
That same contempt for the rights of Muslim suspects animates President Trump’s views on Guantánamo. When asked about 2014 trials in Guantánamo, Trump stated: “They ought to pass a law where terrorists go quickly. You know, in China, it takes 24 hours and then the bullet — and the family pays for the bullet.” Referring to Saipov, the President reiterated that sentiment. “We also have to come up with punishment that’s far quicker and far greater than the punishment these animals are getting right now.”
More fundamentally, President Trump’s Guantánamo “policy” is best understood as an extension of his anti-Muslim bigotry. This blog and others have well-documented how his “Muslim Ban” is not driven by national security, but by the Administration’s animus. As President, Mr. Trump has retweeted anti-Muslim videos published by a fringe British political group; suggested that executing suspected terrorists en masse with bullets dipped in pigs’ blood could eradicate terrorism (since practicing Muslims consider pork unclean); and consistently gone out of his way to appoint advisors with known anti-Muslim views.
On the campaign trial, Mr. Trump asserted that “Islam hates us” and that Muslims possess “tremendous hatred” and “unbelievable hatred.” He declared that he would “certainly implement” a registry of all Muslims in the U.S. and repeated numerous times while campaigning that he would “strongly consider” shutting down all mosques in the U.S., because they were sources of “absolute hatred.” But Mr. Trump’s contempt for Muslims long predates his inauguration, or even his presidential campaign. As early as April 2011, Mr. Trump announced that there “absolutely” was “a Muslim problem” in the United States, declaring that the Qur’an “teaches some very negative vibe.”
Days after CCR and the other lawyers filed their petition, the court entered a scheduling order and asked the federal government to more fully explain its treatment of the remaining Guantánamo detainees. It is a step in the right direction, and hopefully indicates that the federal courts will continue to serve as a check on President Trump’s discriminatory and unlawful policies and actions.