By Karen J Greenberg – Jan 25, 2022
From the very beginning, the courthouse at that US base on the island of Cuba has served as a revealing symbol of the prison’s venality.
It’s now more than 20 years later and that American offshore symbol of mistreatment and injustice, the prison at Guantánamo Bay, Cuba, is still open.
In fact, as 2021 ended, New York Times reporter Carol Rosenberg, who has covered that notorious prison complex since its first day, reported on the Pentagon’s plans to build a brand-new prefab courthouse at that naval base. It’s intended to serve as a second, even more secret facility for holding the four remaining trials of war-on-terror detainees and is scheduled to be ready “sometime in 2023.”
Close Guantánamo? Not soon, it seems. The cost of that new construction is a mere $4 million, a relatively minor sum compared to the $6 billion dollars and counting that detention and trial operations had claimed by 2019, according to the estimate of one whistleblower.
Notably, the news about the building of that secret courtroom coincided with the 20-year anniversary of the detention facility and the administration of the second president who’s intending to shut the place down. Its plans are meant to suggest that the proposed structure will actually contribute to that never-ending process of closing the world’s most notorious prison camp.
Guantánamo currently has 39 detainees in custody, 12 of whom are held under a military commissions system; 18 of whom, long kept without charges of any sort, have now been officially cleared for release to chosen countries which agree to have them (which doesn’t mean that they’ll actually be released); and nine of whom, also never charged, are merely hoping for such clearance.
With two courtrooms instead of one, trials, at least more than a year away, could theoretically take place at the same time rather than sequentially. Unfortunately, it’s hard to imagine that the number of courtrooms will have any effect on a speedier outcome. As Scott Roehm, Washington director for the Center for Victims of Torture, recently told the Daily Beast, “There is a consensus that the commissions have failed—but they haven’t failed because of a lack of courtrooms.”
Consider it a record of sorts that, in 20 years, only two trials have ever been completed there, both in 2008. Both led to convictions, one of which was later overturned, one of which is still on appeal. This paltry record is another sign of the forever reality of Guantánamo, where neither small nips and tucks nor major alterations have proved anything more than cosmetic dressing for a situation that has proven intractable over three presidencies and the beginning of a fourth.
Of late, there has been a growing consensus that closing the prison is a must, especially given the final debacle of the US departure from Afghanistan. As Sen. Dianne Feinstein (D-CA) wrote at Lawfare on the 20-year anniversary of that offshore symbol of all-American injustice, “Ending the failed experiment of detention at Guantánamo Bay won’t be easy. But now that the US’s war in Afghanistan is over, it’s time to shut the doors on Guantánamo once and for all.”
On the floor of the Senate that same day, Sen. Dick Durbin (D-IL) called for closure as well, deriding the prison camp as “a symbol of our failure to hold terrorists accountable and our failure to honor the sacrifices of our service members. These failures should not be passed on to another generation—they should end with the Biden administration.”
But calling for closure is one thing, closing that prison is quite another.
The Challenges of Closure
Commonly, the closing of Guantánamo is envisioned as involving a series of practical steps which I, like so many others, have been suggesting for years now. The most recent proposal comes from the University of Pennsylvania’s Center for Ethics and the Rule of Law, which has outlined a 13-step process aimed at shutting down that facility for good. This entails resolving the remaining cases in the military commissions (10 still facing trial, two already convicted), while emptying the prison of its remaining 27 prisoners held in indefinite detention without charge.
Let’s begin with the military commissions. The new courtroom—facing completion sometime in 2023, potentially almost two years away—is meant to “speed up” the trial process. Still, in the last 20 years, there have been just eight convictions, most due to plea deals. Three of them have since been overturned and three more are still on appeal. In other words, we’re talking about a staggering picture of wholesale failure.
True, there have been dozens of pre-trial hearings for the four trials now pending. But pre-trial hearings are one thing, trials another. Most incredibly, the trials of the alleged 9/11 co-conspirators have still not begun.
And there’s little hope that those will ever find a way forward to resolution. For starters, the individuals to be tried were first tortured at CIA black sites before being brought to Cuba, and much of the evidence and testimony relevant to their cases is largely derived from such torture practices. Even with resolution, it’s nearly impossible to imagine how such proceedings would ever lead to justice.
How (Not) to Exit Guantánamo
There are at least two suggested ways of finally resolving the military commissions in the relatively near future. Human rights lawyer and military commissions defense attorney Michel Paradis recently laid these out on a Lawfare podcast.
One would be for the government to take the death penalty off the table and open the door to plea deals. Numerous experts have supported this way forward. So, too, Colleen Kelly, head of September 11th Families for Peaceful Tomorrows, an organization of the family members of 9/11 victims, has indicated support for this option, as she recently testified before the Senate Judiciary Committee.
Another option, Paradis pointed out, would be to move the trials to federal courts in the United States. Unfortunately, that’s an unlikely prospect indeed, given a congressional ban on Guantánamo detainees being brought to this country that’s been in place for more than a decade.
In 2010, one such detainee was indeed tried in federal court. That was then-Attorney General Eric Holder’s idea—as a prelude, he hoped, to bringing the other trials to federal courts—and it was the right one. The case in question was that of Ahmed Ghailani, accused of involvement in embassy bombings in 1998 that killed 224 individuals. Like others held at Guantánamo, he had been tortured at a CIA black site, evidence that was excluded at trial. He was, in the end, acquitted on 284 of 285 charges. Nonetheless, the case was resolved and, on that final charge, he’s serving a life term at a federal penitentiary in Kentucky.
On the other side of the Guantánamo quagmire are those detainees who will never be charged, the ones Carol Rosenberg originally dubbed the “forever prisoners.” Eighteen of them have now actually been cleared for release by the prison’s Periodic Review Board. For those forever detainees to actually exit the prison, however, depends upon diplomatic arrangements with other countries.
To date, such detainees have gone to at least 60 countries in Europe, Central Asia, the Middle East and Africa. At least 150 of them were sent to nations other than those in which they had been citizens. Those transfers were arranged by the special envoy for the State Department’s Guantánamo closure office, which itself was closed during Donald Trump’s presidency and remains so today. Reopening it is a necessary step towards emptying Guantánamo of its forever detainees.
Unfortunately, it’s most likely that new ways will be discovered to kick the ball of closure endlessly down the road. As attorney Tom Wilner, who has worked as a human rights lawyer on behalf of several of the detainees, said at a panel held to commemorate the prison’s 20th anniversary, “The military commissions aren’t ever going to work.”
Meanwhile, when it comes to those who are not yet charged but have been authorized for transfer, there’s no guarantee that such releases will actually occur any time soon.
The Longer Legacy
In the legal quagmire the US has created, there is, in fact, no easy solution to closing Guantanamo.
It’s worth noting, as well, that even were the Biden administration capable of implementing an immediate, aggressive strategy to shut the prison down, the horrors it unleashed are guaranteed to linger well into the future. “There are some problems of Guantánamo that will never go away,” Daniel Fried, President Barack Obama’s first special envoy for closure, admitted to The Guardian recently.
For one thing, the multi-decade inability of the American legal system to try such prisoners, either on or offshore, has left a stain on the competency of the country’s judicial system, civilian and military, as well as on Congress’s ability to create legitimate workable alternatives to that very system. Not being able, of all things, even to bring the alleged 9/11 attack co-conspirators, already in custody at Guantánamo Bay, to any court sends a message that American justice in the 21st century is incapable of handling such incredibly important cases.
And when it comes to the detainees who have been transferred elsewhere in the world, the story is hardly less grim. As The Guardian has reported, those sent to third countries regularly encountered further forms of deprivation, cruelty, imprisonment or torture. Often unschooled in the language of their host countries, denied travel papers, and stigmatized due to their Guantánamo past, “released” detainees found, as a Washington Post report summed it up, that “life after Guantánamo is its own kind of prison.”
Mansoor Adayfi, a detainee transferred to Serbia rather than his home country of Yemen, has described the dire conditions of post-prison life in his book Don’t Forget Us Here, referring to it as “Guantánamo 2.0.” As he told The Intercept’s Cora Currier recently, “Released, I have been detained, beaten, arrested, and they have my friends harassed, interrogated.” And that, of course, is after, like so many prisoners in that island jail, having been regularly beaten, force-fed and kept in solitary confinement while there.
In such a context, the plan for an all-new courtroom takes on a new kind of significance.
The Courtroom, Then and Now
From the very beginning of Guantánamo, the courthouse at that US base on the island of Cuba has served as a revealing symbol of the prison’s venality.
In the first days of that war-on-terror detention camp, as I described in my book The Least Worst Place: Guantanamo’s First 100 Days, Captain Bob Buehn, then the naval base commander there, gave himself the mission of finding a proper plot of land on which to build a courtroom to try the detainees arriving by the plane load. He considered it his duty to do so, only to quickly grasp that no one in power considered this the prison’s objective and that no such plans would be forthcoming any time soon.
As Major General Michael Lehnert, the commander of that detention facility at the time of its opening, reminded me recently, the initial mission was about “intelligence collection,” not trials. Accordingly, it wasn’t until two years later that hearings even began for the detainees—and then only for a few of them.
Originally, those proceedings took place in a windowless room constructed to ensure security and secrecy, a room far too small for its purpose. Once a formal version of the military commissions was authorized by Congress in the Military Commissions Act of 2006, a new facility was built that included a state-of-the-art SCIF (sensitive compartmented information facility), a carefully “secured” room meant to be a classified setting.
It was an ugly irony, however, that underneath that room was a toxic waste dump, with all the perils to lawyers and others you might imagine. Sometimes all too literally reeking of the environmental misdeeds of the past, the new courtroom has gone forward on a poisoned path of its own, somehow trying to avoid the information extracted by torture that lay at the heart of the cases waiting to be tried.
Now, a new building is going up, even more wed to secrecy as well as to the suppression of the torture the defendants endured at American hands. As Rosenberg reports, it will be wrapped in yet more secrecy, since the “current war court chamber” did at least allow spectators. The new one won’t. “Only people with a secret clearance,” Rosenberg reports, “such as members of the intelligence community and specially cleared guards and lawyers, will be allowed inside the new chamber.” Observers, including the family members of victims, will have to watch by video feed.
Fifteen years ago, when plans for the current courtroom were introduced, the ACLU asked senators to block funds for the building of the courthouse, arguing that “there is no need for an elaborate, permanent courthouse complex at Guantánamo Bay… Even President Bush has expressed his interest in substantially reducing the number of detainees at Guantánamo Bay and eventually closing it.”
It’s remarkable how little progress has been made since then.
What former commander Bob Buehn discovered so long ago as a lack of appetite for trials of any kind has evolved over time into a “trial” system of endless delays that only help perpetuate the worst of Guantánamo, while eternally extending the life of that now globally notorious prison camp.
As Lee Wolosky, who served as President Obama’s special envoy for closure of Guantánamo, wrote on the occasion of the 20th anniversary of that prison: “In large part, the Guantánamo mess is self-inflicted—a result of our own decisions to engage in torture, hold detainees indefinitely without charge, set up dysfunctional military commissions, and attempt to avoid oversight by the federal courts… [I]t is past time,” he concluded, “to retire this relic of the forever wars.”
The country would do well to heed his words once and for all and so avoid a 30th anniversary of an American institution that has so violated the norms of justice, decency, and the rule of law.
Karen J. Greenberg is the director of the Center on National Security at Fordham Law and author of the newly published Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press). Julia Tedesco helped with research for this piece.
Featured image: The guard tower at Guantánamo Bay Detention Camp Delta in Cuba, 2010. Photo: Joint Task Force Guantánamo/Flickr