For 18 years, I’ve been writing articles for TomDispatch on the never-ending story of the Guantánamo Bay Detention Facility. And here’s my ultimate takeaway (for the moment): 21 years after that grim offshore prison of injustice was set up in Cuba in response to the 9/11 attacks and the capture of figures supposedly linked to them, and despite the expressed desire of three presidents — George W. Bush, Barack Obama and Joe Biden — to close it, the endgame remains devastatingly elusive.
At times due to a failure of will, at times due to a failure of the system itself or the sheer complexity of the logistics involved, and at times due to acts of Congress or the courts, efforts to shut that prison have been eternally stymied. Despite endless acknowledgements that what’s gone on there has defied domestic, international, and military law — not to mention longstanding norms of morality and justice — that prison persists.
Recently, however, for those of us perpetually looking for a ray or even a glimmer of hope, there have finally been a few developments that seem to signal steps, however tiny, toward closure.
There are still 30 detainees at Guantánamo. Sixteen of them have been deemed no longer threats to the United States and cleared for release, but arrangements have yet to be made to transfer them to another country. Three others are considered too dangerous for release. And eleven have been charged in the military commissions system that was set up in 2006 and revised under President Obama in 2009. One, Ali Hamza Ahmad Suliman al-Bahlul, has been convicted. Another, Abd al-Hadi al-Iraqi, recently pleaded guilty. Now, nine detainees face trials in three separate cases. All of them were tortured at CIA “black sites” for different periods of time between 2003 and 2006.
Progress in the Biden years has been occurring, even if at a snail’s pace. His administration has said that it intends to close Guantánamo by the end of his term. And in the last two and a half years, it has indeed reduced the population from 40 to 30, the most recent transfer of a freed prisoner to another country occurring this April. In addition, the Biden administration increased the total number of remaining detainees eligible for release from six to its current 16.
Arranging such transfers has proven painstaking work, requiring complex negotiations with foreign countries, as well as assurances to American officials — and ultimately Congress — that the release will pose no future threat to the United States and that the prisoner will be treated justly in the receiving country. Those releases have been complicated because, after Obama announced at the outset of his presidency that Guantánamo would close within a year, Congress banned any Gitmo detainee from ever being transferred to the United States for any purpose whatsoever, a ban that’s been re-authorized every year since then.
While those detainees cleared for release await transfer to other countries, developments over the past few months have put the military commissions in the forefront of activities aimed at closure.
Until now, the commissions have indeed been a dismal failure. A mere nine convictions have been secured since the passage of the first Military Commissions Act in 2006, all but two through plea deals, and four of the nine have been overturned on appeal. Two remain on appeal. Generally, however, the fact that all of the individuals currently charged and facing trial were initially held at CIA black sites around the world where they were grievously tortured has proven an impassable barrier to trial. Consequently, as New York Times reporters Carol Rosenberg and Charlie Savage have reminded us, “No former C.I.A. detainee has been convicted at trial before a military commission.”
The reasons are many. Obama delayed the trials for three years and the pandemic delayed them further. But by far the biggest obstacle remains the fact that the detainees were horrifically tortured at those black sites. Defense attorneys have persistently insisted that evidence derived under torture should be inadmissible in the proceedings in accordance with the law. While the prosecutors have claimed otherwise, even so many years later, the tortured defendants continue to suffer from the devastating fashion in which they were treated, impeding their defense and causing further delay. In fact, their torture-induced severe psychological instability and often physical incapacity, not to mention instances of distrust of their lawyers, have made it difficult to hold hearings of any sort. As a result, after so many years, the cases remain in the throes of pre-trial hearings and jury selection is still far off.
President Biden has indeed set himself a lower bar than Obama, who issued an early executive order calling for the closure of the prison within a year only to encounter immediate blowback and failure. Still, Biden has made some modest headway in closing Gitmo. Since he took office, most of those who remained in “forever prisoner” limbo have at least been cleared for release. In addition, he’s appointed Tina Kaidanow, former State Department ambassador at large for counterterrorism, to oversee their transfers and has secured the release of 10 prisoners since he took office.
But the recent signs, however incremental, of further movement pertain not to the three remaining “forever prisoners” or to the 16 who have been cleared for release but to those being dealt with by the military commissions established by Congress.
The Military Commissions Cases
The military commissions still face the almost insurmountable hurdle that has haunted them from the start: the legacy of CIA torture. Nevertheless, there has been some recent modest progress, despite the irrevocable damage it caused both individual detainees and our system of justice.
The first signs of movement came in the initial days of the Biden presidency when the Pentagon referred charges against three men to the military commissions. The two Indonesians and one Malaysian captured in Thailand in 2003 had been accused in connection with bombings that targeted two nightclubs in Bali in 2002 and a Marriott Hotel in Jakarta in 2003, resulting in the deaths of more than 200 people, including Americans. A trial date has now been proposed for 2025. (This would, of course, be after Joe Biden’s first term in office.)
Then, there have been signs of progress on potential plea deals. In the summer of 2021, pretrial hearings in the case of Abd al-Hadi al-Iraqi, an Iraqi captured in 2006 and accused of being a senior member of al-Qaeda, began. The al-Iraqi case reached a resolution in June 2022, when he pleaded guilty to war-crime charges for acts committed in Afghanistan. The terms of his plea deal are still unknown. His sentencing is set for 2024.
In addition, starting in the spring of 2022, prosecutors reached out to defendants in the 9/11 case, who have been facing the death penalty, to begin potential plea-deal discussions in which a maximum life sentence would replace the threat of death. But the path towards resolution remains fraught. In September, perhaps in response to pressure from some of the 9/11 families intent on keeping the death penalty in place, President Biden reportedly refused to approve certain details of those proposed deals. As with so much else at Guantánamo, for every step forward, there seem to be two steps back. Still, negotiations are presumably continuing.
In another instance of inching forward, the commissions have recently addressed the case of Ramzi bin al-Shibh, one of the 9/11 defendants. He has displayed severe signs of mental instability, including delusions and hallucinations, owing to his brutal treatment in CIA custody. He’s convinced, for instance, that CIA agents are still pumping unnerving noises and vibrations into his cell, causing sleep deprivation. His inability to talk about much else has stymied the attempts of his lawyers to prepare him for future hearings. Last June 6th, in fact, a panel of psychiatrists and forensic experts declared him unfit to stand trial, given his post-traumatic stress syndrome and his psychotic delusions. Based on their report, Commissions Judge Matthew McCall agreed and, on September 21, 2023, severed him from the trial.
Excluding Tortured Evidence
While there are, in other words, signs of progress via plea deals and severance, the most promising development may be in the longest running military commission case of all, that of Abd al-Rahim al-Nashiri. He’s accused of masterminding the bombing of the USS Cole, a destroyer off the coast of Yemen, in 2000 killing 17 American servicemen.
Al-Nashiri, a Saudi, was held in CIA black sites from 2002 to 2006, while being tortured using techniques like waterboarding, stress positions, forced sodomy, and mock executions. He was finally indicted in 2011, but his case has faced innumerable pretrial hurdles since then, largely involving debates over evidence derived from torture and the possible inadmissibility of it at trial.
Lawyers considered that his case had taken a step forward when the government reversed its position on torture-derived evidence. A Biden Department of Justice brief filed on January 31, 2022, said, “The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees… [T]he government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.” That reversed a prior policy allowing such statements to be used in pretrial hearings, if not at trial itself.
Then, in August, the judge in the case made torture the grounds for taking yet another step forward. Like other detainees, al-Nashiri had been interviewed in later years by FBI “clean teams” of agents who attempted to solicit the same confessions without torture and were often successful. The prosecution wanted to use those confessions, but defense attorneys argued that the impact of torture didn’t dissipate with the clean teams, that the detainees feared their torturers were waiting in the wings to punish them if they gave different answers. They insisted that the defendant’s torture trauma and the perpetual fear of more of it remained an ongoing obstacle to statements of truth.
Al-Nashiri’s lawyers filed papers seeking to exclude his clean-team testimony. Judge Lanny Acosta then took a long-overdue step forward, ruling against the admission of such later confessions. He noted that the clean-team agents “acted professionally and in no way coerced the accused,” even offering “tea and pastries” and reassuring the defendant that he was no longer in CIA custody. Nonetheless, Acosta ruled the statements inadmissible in pre-trial proceedings as well as at trial, since prolonged torture had undoubtedly affected al-Nashiri’s later testimony.
In his 50-page opinion, the judge offered a detailed chronology of the kinds of torture Nashiri had suffered and noted as well the continued use of force against him during his time at Guantánamo, treatment and conditions that could indeed evoke memories of his period in CIA custody. As the judge wrote,
“[H]e was in no position to know whether Drs. Mitchell and/or Jessen [the architects of the CIA’s “Enhanced Interrogation” program] were watching…. prepared to intervene with more abusive treatment… He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before… [or if someone] lurked nearby with a pistol, a drill, or a broomstick, ready to intervene in the event he chose to remain silent or to offer versions of events that differed from what he told his prior investigators.”
As the Judge concluded, “Even if the 2007 statements were not obtained by torture or cruel, inhuman, and degrading treatment, they were derived from it.” Michel Paradis, a senior attorney in the Department of Defense’s Office of the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, has summed up the situation aptly, telling me, “What the refusal to admit the so-called ‘clean team’ statement shows is what anyone who looks at it up close sees. There is nothing clean about torture and there is no way to sanitize it.”
The judge’s decision also marks a potential threshold for the remaining Gitmo cases. If evidence from torture is disallowed, including in pre-trial proceedings, that may lead to future plea deals and even some leniency. Either way, in the wake of Judge Acosta’s decision, the interminably slow Guantánamo cases might just begin to proceed more rapidly.
Add to all this the effect of the passage of time, given among other things the aging not just of Gitmo’s prisoners, but of those working to bring their cases to trial over all these years, many of whom have retired. Judge Acosta gave notice of his retirement from the Army as September ended, while Matthew McCall, the fourth judge to preside over the 9/11 case, has similarly indicated that he’ll be leaving next April, also before it comes to trial. Several of the attorneys for the detainees have retired as well, after so many years representing their clients.
The belated but increasingly accepted notion that torture renders trials impossible, now seemingly shared by the court as well as the defense teams, has become more than mere rhetoric. As Paradis commented to me, “No justice system worth the name permits even the whiff of evidence tainted by torture. We have revolted at the idea for more than a century in this country and even persuaded the world that it should do the same, such as when Ronald Reagan signed the Convention Against Torture.”
Ironically, the acknowledgement of this reality may finally bring these cases to their conclusion. But so many years later, despite being determined to grasp every ray of hope, I suspect that, when it comes to the closing of Guantánamo, the sorrowful record of the past may overshadow the dreams of a better tomorrow.
[Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law. Her most recent book is Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump, now out in paperback. Claudia Bennett and Ava Gagliardi contributed research for this article.]
Copyright 2023 Karen J. Greenberg. Cross-posted with permission. May not be reprinted without permission from TomDispatch.
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