Eleven prisoners are petitioning a federal court in Washington to end their indefinite incarceration and are citing the president’s campaign comments

Eleven Guantánamo inmates are challenging their indefinite detention in the US military camp in Cuba on grounds that Donald Trump’s defiant pledge to keep all remaining detainees permanently locked up is fuelled by hostility towards Muslims.

The inmate’s petition, filed on Thursday in a federal court in Washington, falls on the 16th anniversary of the arrival of the first 20 detainees to Guantánamo. The prisoners were brought in shackles from Afghanistan on 11 January 2002 dressed in distinctive orange jumpsuits.

Some of the petitioners in the new filing have themselves been held on the Cuban base almost since the beginning; others have been detained for 10 years. None of them has ever been charged, and all know that unless the courts intervene they could remain in their cells until they die.

In a memorable phrase, they say that “the aura of forever hangs heavier than ever”.

Q&A Why hasn't Guantánamo been closed? Show Hide Barack Obama promised to close Guantánamo Bay in January 2009, only to make repeated compromises amid political opposition, bureaucratic tangles, and disputes within his team. In May 2009, the Democratic-controlled Congress rejected funding to close the prison, calling Obama’s plan too vague. In 2010, New York’s independent mayor refused to host a trial for detainees charged over the 9/11 attacks. Obama continued with and defended several practices of George W Bush’s administration, including indefinite detention and military commissions to try detainees instead of civilian courts. When Republicans retook Congress in 2011, they started adding terms to funding bills, which Obama signed, that prevented transfers or closure. Meanwhile, Obama’s justice department argued against appeals by detainees fighting for release in court, and the Pentagon moved at a glacial pace to review parole cases for detainees deemed not to be a threat. Faced with hunger-striking detainees, General John Kelly, then commander in charge of the base, oversaw force feeding, and the Obama administration tried to stop the release of evidence. Obama gradually reduced the number of detainees in the prison, from 242 to 41 over two terms; since Bush’s first term, 731 of Guantánamo’s 780 detainees have been released without charge, to the Middle East, Africa, central Asia and the Caribbean. Donald Trump supports keeping the prison open and has said he would like to “load it up” with detainees. Alan Yuhas Photograph: John Moore/Getty Images North America

At the heart of the legal petition is the claim that President Trump has taken a radically new approach towards the treatment of the 41 prisoners who remain at Guantánamo. The inmates argue that his stance is defiant in spirit, arbitrary in nature, and fueled by his “suspicion and antipathy” towards Muslims.

The petitioners quote medical experts who have compared the prolonged indefinite imprisonment at Guantánamo to sensory deprivation and psychological torture. “Prisoners are medicated for depression and anxiety brought on by acute despair.”

The inmates are basing their challenge on two legal points. They claim that indiscriminate indefinite detention is illegal under the due process clause of the US constitution.

The second argument is that the justification for never-ending detention under the Authorization for Use of Military Force (AUMF) was that it was needed to prevent committed enemies of the US returning to the battlefield. But the petitioners claim that justification has begun to unravel.

On the campaign trail Trump said of Guantánamo that he would “load it up with some bad dudes”.

Shortly before his inauguration he pledged in a tweet to block any further releases on grounds that all the 41 were “extremely dangerous people”.

That threat has come to pass. Pardiss Kebriaei, a lawyer with the Center for Constitutional Rights who represents one of the petitioners, Sharqawi Al Hajj of Yemen, who has been detained for 15 years, said that all moves towards release have ground to a halt since Trump came in.

“There’s nothing happening. It’s an entirely static situation, and that kind of indefinite detention without charge is intolerable, it cannot be allowed to continue,” she said.

Facebook Twitter Pinterest Protesters with Witness Against Torture participate in a rally at the supreme court in Washington on 11 January 2017, calling for the closure of the Guantánamo Bay prison. Photograph: Molly Riley/AP

Two of the petitioners, Toufiq al-Bihani and Abdul Latif Nasser, have officially been cleared for transfer out of Guantánamo. Bihani, who has been in the camp for almost 15 years having been arrested in Iran on suspicion of having al-Qaida ties, has been held for a full seven years after the US government decided he could leave.

Nasser was approved to be sent to his native Morocco in July 2016 and was all set to travel until procedural hiccups prevented the move in the last days of the Obama administration. The inmates argue that since Trump came to office there has been “open hostility to transferring any detainees.

We Guantánamo Bay detainees have the right to protest our condition | Khalid Qassim Read more

Trump’s approach stands in sharp contrast to either of his predecessors. Though George W Bush was instrumental in setting up the extrajudicial nature of the military detention system, in the end he released 539 of the 780 prisoners.

Obama went on to transfer 201 prisoners out of the base. Despite his declared intent to shut down the camp, Obama was ultimately frustrated in the ambition, not least by Republican opposition in Congress to transferring inmates to the US.

The endurance of Guantánamo outside the norms of the US criminal justice system and international law has been condemned repeatedly by world bodies including the UN and human rights groups.

As time has passed, the remaining detainees have grown older and more vulnerable, both physically and mentally. The oldest prisoner is now 70.

Nine inmates have died over the past 16 years, some by their own hand. Prolonged hunger strikes have also taken their toll.

