On human rights, the United States must be a beacon. America is strongest when our policies and actions match our values.More
Home / Blog / Guantanamo Detainee Questions Scope of the Government’s Detention Authority
December 17, 2018

Guantanamo Detainee Questions Scope of the Government’s Detention Authority

By Joy Bagwell

The Guantanamo Bay Periodic Review Board convened on Tuesday, November 20 to determine whether Hasan Ahmen Guleed, also known as Guled Hassan Duran, should be transferred out of the detention facility after more than 14 years in custody without charge or trial. Duran was taken to Guantanamo in September 2006 after two years of detention and torture at a CIA black site.

Originally captured in Djibouti in 2004 based on alleged involvement with Al Qaeda in Afghanistan, and purported support for radical Muslim groups operating in Ethiopia and Somalia, Duran denies all allegations that he trained with or took up arms on behalf of any terrorist group. Ahead of the PRB hearing,

Duran’s attorneys published an unclassified statement arguing that Duran’s detention is not authorized by the authorization for use of military force (AUMF) passed in 2001 because Duran was captured in Djibouti—where the United States has never been involved in an armed conflict—for alleged activities wholly unrelated to the planning and execution of the 9/11 terror attacks.

Duran’s attorneys also argued that there is no credible evidence to support his alleged membership in Al Qaeda or other extremist groups. They assert that the U.S. military was not involved in an armed conflict in Somalia pursuant to the AUMF until at least January 2007, and that there were no Al Qaeda-associated forces in Somalia until December 2016 when President Obama designated Al Shabaab an associated force under the 2001 AUMF. The only evidence against him was gathered pursuant to CIA torture and is thus unreliable, they claim. In November 2016, Duran filed a habeas petition in the District Court for D.C. challenging the legality of his initial capture and detention. This petition, though active and ongoing, will likely not be decided before mid-2019.

Duran’s personal representative provided by the government made a statement before the Periodic Review Board that lasted for no more than five minutes. In that statement, he focused on Duran’s desire to be reconnected with family members located in the United States and Canada. He also stressed that Duran is no longer a continued threat to the security of the United States.

Any PRB determination in favor of transfer must be made by a unanimous vote by representatives from the Departments of Defense, Homeland Security, Justice, and State, the Joint Chiefs of Staff, and the Office of the Director of National Intelligence. This rigorous process has helped ensure that rates of detainees engaging in post-release terrorist or insurgent activities are remarkably low. As of July 15, 2018, only 4.6 percent of detainees transferred out of Guantanamo since 2009 are confirmed to have engaged in such activities.

However, the PRB process has recently faltered under the Trump administration. No detainees have been approved for transfer by the PRBs since Trump took office and two detainees have been waiting months for a decision. Worse, even if the PRB clears Duran for transfer, there is no guarantee that the detainee will finally leave Guantanamo. Five the remaining 40 detainees at Guantanamo have been cleared for transfer for years—three by an interagency detention task force in 2010 and two by PRBs in 2016—yet they remain in custody at Guantanamo Bay