Jailed without trial for Life? Guantanamo's Lawlessness may outlast the Obama Administration

By Karen J. Greenberg | (Tomdispatch.com) | – –

Can you believe it? We’re in the last year of the presidency of the man who, on his first day in the Oval Office, swore that he would close Guantánamo, and yet it and everything it represents remains part of our all-American world. So many years later, you can still read news reports on the ongoing nightmares of that grim prison, ranging from detention without charge to hunger strikes and force feeding. Its name still echoes through the halls of Congress in bitter debate over what should or shouldn’t be done with it. It remains a global symbol of the worst America has to offer.

In case, despite the odds, it should be closed in this presidency, Donald Trump has already sworn to reopen it and “load it up with bad dudes,” while Ted Cruz has warned against returning the naval base on which it’s located to the Cubans. In short, that prison continues to haunt us like an evil spirit. While President Obama remains intent on closing it, he continues to make the most modest and belated headway in reducing its prisoner population, while a Republican Congress remains no less determined to keep it open. With nine months left until a new president is inaugurated, the question is: Can this country’s signature War on Terror prison ever be closed?

The “Forever Detainees”

Here then is a little dismal history of a place most Americans would prefer not even to think about.

In January 2002, President George W. Bush opened the Guantánamo Bay Detention facility. It was to hold, in Secretary of Defense Donald Rumsfeld’s phrase, the “worst of the worst” in the War on Terror. Over time, its population rose to nearly 800 prisoners from 44 countries, some captured in Afghanistan, some traded for bounty payments by vindictive neighbors or hostile tribesmen, and some seized by CIA operatives in countries far from Taliban territory. The prison then held more al-Qaeda and Taliban followers than leaders, but many prisoners were neither: they had simply been in the wrong place at the wrong time. Recognizing this, within a few years the Bush administration sent more than 500 of the detainees back to their countries of origin or to other countries willing to accept them.

Then, in 2006, Bush made the lie of Guantánamo a reality. His administration finally transferred “the worst of the worst” to the by-then-notorious island prison. Those 16 individuals included five who stood accused of participating in the 9/11 conspiracy, and others who were believed responsible for devastatingly lethal attacks against American targets in the 1990s, including the American Embassies in Kenya and Tanzania in 1998 and the USS Cole in the Yemeni port of Aden in 2000. All had been held for years in CIA custody in “black sites” in countries around the world. All had been subjected to “enhanced interrogation techniques,” which was, of course, the administration’s (and, in those years, the media’s) euphemism for some of the oldest torture practices known.

That move would prove a game changer. Instead of Guantánamo’s population shrinking into irrelevance and dwindling into obscurity, as it should have, the prison for the first time became exactly what Rumsfeld had promised it would be: a place for the most notorious al-Qaeda “high value detainees” (HVDs) that the U.S. held. Khalid Sheikh Mohammed, the “mastermind” of 9/11, and four others allegedly involved in planning or carrying out the attacks on New York and Washington were among them.

That same fall, Congress passed the Military Commissions Act aimed at assuring that Guantánamo would be a site not only for offshore detention, but for offshore justice as well. At some future point, Mohammed and the others were to be tried by the U.S. military in Cuba, not in American civilian courts in the U.S. For the first time, the military commissions, like the high value detainees, seemed to give Guantánamo definition (other than simply as a site of abuse, mistreatment, and injustice) and the possibility, in the context of the war on terror, of forward momentum. Those not released could now be tried. And yet by the end of the Bush years, only three prisoners, none of them HVDs, had been successfully convicted — fewer, in other words, than the five who died in custody there in those years.

That should have been revealing enough for conclusions to be drawn. It turned out that even a secretive, militarized, legally compromised system of “justice” couldn’t successfully bring to trial individuals involved in the crime that launched the new century, when the major evidence against them often came from brutal forms of torture. As a result, most of the Guantánamo detainees had settled into a familiar state of limbo by the time Barack Obama took office in January 2009. At the time, 242 detainees were still in custody there and those military trials were going nowhere fast. The new president arrived on a white horse, full of promises about ending the stasis at Guantánamo and ready to make sense of things. He promptly promised to close the prison for good and suspended the military commissions.

That left the problem of somehow resolving the unsettled status of the various detainees then in custody at Gitmo, individuals who essentially fell into three categories: those deemed not to pose a danger to the U.S. who were to be released; those considered too dangerous for release but — thanks to tortured testimony — not prosecutable even in military courts and were to be kept in indefinite detention (a group Miami Herald reporter Carol Rosenberg aptly termed “forever prisoners”); and those who would someday be tried by some version of the suspended military commissions.

By the summer of his first year in office, Obama had announced that he would accept the distinctly un-American reality of indefinite detention and the military commissions as well, although in a new form still to be legislated by Congress. From then on, his presidency would remain eerily locked in the embrace of the Bush administration on Guantánamo and, promises or no, one thing was quickly clear: the president was not about to go out on a limb for the Gitmo detainees; he had other things to tend to (like a health-care proposal). Meanwhile, a task force appointed by the president determined that 48 detainees should indeed be kept in indefinite detention, 36 prosecuted, and the rest released via transfers to other countries.

Shrinking Gitmo

Given his promises, it was not exactly a record to feel proud of, but in his seven years in office, President Obama has at least made some headway in terms of the sheer size of the Gitmo population. Admittedly, the pace of releases has been abysmally slow. Dozens of prisoners have been declared no longer dangerous and yet left to languish in their cells. Meanwhile, diplomatic negotiations for their resettlement in countries neither so fragile that terrorism is a daily reality, nor likely to abuse them further dragged on (while congressional Republicans continue to fight on tooth and nail to keep them in place). Still, today there are “only” 80 remaining detainees, a third of the population in January 2009. Twenty-six of those have been cleared for release but are still awaiting transfer years later, while 44 continue to be held without charges in indefinite detention. Nine face actual charges before the military commissions.

Whatever the reduction in numbers, however, the camp stands essentially as it did under Bush, a monument to bad memories. It still has dozens of individuals locked away in a grim state of hopelessness, some cleared for release but doubting their transfers will ever occur, others having given up entirely and on hunger strikes — essentially trying to commit suicide.

Theoretically, the pace of resettlement for those already cleared for release could be speeded up and the Periodic Review Board, charged with deciding if an individual no longer poses a danger to this country, could meet more frequently to agree on releases among the relatively small number of detainees whose futures are still undetermined. Were that to happen (and it might), within months the population of Gitmo could be reduced to a relatively few detainees.

It’s worth noting that U.S. taxpayers continue to ante up a pretty penny to maintain Gitmo and its shrinking group of inmates in its present state. The cost to keep a detainee there in 2015 is estimated at between $3.7 million and $4.2 million a year. Were that population to be reduced significantly, those millions of dollars per detainee would only skyrocket up. The smaller the number remaining there and the higher the cost per head, the more likely that even a reluctant Congress might eventually agree to move them to the U.S., although “closing Guantánamo” will then mean bringing Gitmo practices — indefinite detention without charges, the most fundamental violation of due process imaginable — to the mainland.

Regressive Justice

That would leave one thing and one thing alone standing in the way of Guantánamo’s official end: the military commissions, and that would indeed be ironic. After all, unlike indefinite detention or torture, those commissions are a recognizable, if flawed, part of the American legal tradition, used during both the Civil War and the Second World War.

They have been marked by failure from the outset. The commissions were not initially on the minds of the Bush administration lawyers and officials who organized the war on terror, set up that Cuban outpost, and enhanced those classic torture “techniques.” In fact, offshore detention was meant to skirt the U.S. justice system almost entirely and get information from the captured men by any means necessary. The goal was clear enough: to fill in for the unfortunate lack of knowledge American intelligence services had about Osama bin Laden, the al-Qaeda network, their hideouts and training camps.

To give themselves leeway in terms of prisoner interrogation and treatment, the administration refused to consider those held there as prisoners of war (POWs), for fear that methods of interrogation would be restricted by the Geneva Conventions. Instead, they coined a term, “enemy combatants,” to create a category beyond the bounds of legality. To this day, U.S. officials speak of the remaining detainees at Gitmo as neither “prisoners” nor POWs.

Soon after the prison was set up, the Bush administration referred 24 of those “enemy combatants” to an ad hoc process which they began to call “military commissions” — until, in June 2006, the Supreme Court declared them invalid unless authorized by Congress (which then dutifully and hastily passed the Military Commissions Act of 2006).

All these years later, only eight prisoners have been convicted under the commissions that were suspended and then revived by Obama. Three of them, convicted before he took office, have since had their charges vacated or overturned. Put another way, you could say that the commissions are regressing in their goal to clear Gitmo’s cases. Once able to claim eight convictions, they can now count only five, and in the months to come, depending on a future decision by the U.S. Court of Appeals in Washington, that number may be reduced further. In sum, the commissions have shown not the slightest progress when it comes to the mission of closing Gitmo.

There are, of course, federal courts in the U.S. with much experience in trying terror cases and a 100% conviction rate when it comes to major ones. To give Obama administration officials some credit, they did initially want to dump the military commissions for trials on the mainland and even moved one high value detainee, Ahmed Ghailani, to the federal courthouse in New York City. While his trial did result in a jury conviction on a single charge and a sentence of life without parole, the trial itself was seen by those who prefer to keep Gitmo open as proof that terrorists do stand a chance of going free in federal courts. Much of the evidence against Ghailani, tainted by torture, was excluded from the trial. While the jury knew neither about his torture nor the fact that he had been held at Guantánamo, Ghailani was acquitted on 283 of 284 counts. In a situation in which the phrase “courage of your convictions” would never be brought to bear, President Obama and Attorney General Eric Holder backed down amid a torrent of criticism, and the military commissions continued at Guantánamo.

And yet for anyone hoping to see that prison closed in our lifetimes, sooner or later the idea of transferring those formally charged with terrorism to the federal courts will have to be revived. The place of choice, were this to happen, should probably be a courthouse relatively close to the White House: the Eastern District Court of Virginia (EDVA). It has, since 9/11, overseen a variety of high-profile terror cases, including those of Zacarias Moussaoui, John Walker Lindh, and Abu Ali.

It is also an inside-the-Beltway courthouse; its judges and prosecutors are familiar with using intelligence-related classified information. It is near the Department of Justice and can call on the expertise of officials at the FBI, CIA, and elsewhere who have been working on these cases for years. Finally, it has earned a reputation as the “rocket docket,” a fast-paced venue that tries such cases with speed — and given how long these trials have been postponed, speed is an important consideration.

Closing Gitmo?

There are a variety of ways that the EDVA could receive cases from the military commissions, ranging from a presidential act in defiance of a Congressional ban on transferring any Gitmo prisoners to the U.S. to actual congressional authorization. There is, however, one man who could make all of this far more likely and that’s Brigadier General Mark Martins, the chief prosecutor of the Office of Military Commissions since 2011. With soldierly loyalty, a sharp legal mind, and a charismatic public demeanor, Martins has for six long years defended the ability of the Guantánamo commissions to succeed as constitutionally and legally valid courts with built-in protections and procedures that approach those of federal criminal courts. He has the power to declare the commissions no longer viable, leaving the administration with little choice but to close them. Were he to do so, it would be a game-changer.

A former adviser to General David Petraeus in Iraq and Afghanistan and co-chair of the task force that revived the commissions after Obama came into office, he has suffered one setback after another. In these years, he has been blindsided by the CIA’s attempts to spy on the commission’s Gitmo courtroom, as well as on the rooms where attorneys meet the defendants they represent. He’s been stopped in his tracks by federal courts that declared the main charges against the detainees he was trying “unlawful”; embarrassed by the mysterious transfer of defense counsel materials to the prosecution’s computers; and humiliated, month after month, by the failure to deliver on the promise he made that the commission’s procedures in their “fundamental guarantees of a fair and just trial” would be “comparable to trials in federal courts.” Those procedures have instead proven to be a farce.

Were General Martins to finally accept the reality of Gitmo — that, given its history, nothing there can truly resemble justice — he might be able to lead even a recalcitrant Republican Congress, the administration in its last days, and the American public to the only realistic conclusion: that the military commissions will never work and it’s finally time to shut Gitmo down. After all, it is hard to imagine any system that would do worse than the one that, for a decade, has failed even to begin the trials of the men charged as perpetrators of 9/11.

Those attacks left an open wound that will not heal, not without actual justice. For the sake of the victims’ families, for the ability of the country to move on, for the very confidence of the nation in its judicial system, those defendants need to be tried and Guantánamo has proven itself incapable of doing so.

Still, all of us have to face another possibility: that the prison will not be closed in what’s left of the Obama years or in the presidency to follow; that this country will instead be left in the twilight zone of Gitmo and in a world where its values are the ones eternally associated with America; and that we will continue to be known as a nation willing to avoid justice, if not deny it outright. Even at this late date, closing Gitmo and moving the military commission trials back to federal court would help heal the wound that the war on terror inflicted on the country’s deepest identity — as a nation of justice for all.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law School and author of The Least Worst Place: Guantánamo’s First 100 Days. Her latest book, Rogue Justice: The Making of the Security State (Crown Publishers), will be published in May. Andrew Dalack, a research fellow at the Center on National Security, helped with this article.

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