Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions

Please support my work! I’m currently trying to raise $2800 (£2100) to support my writing and campaigning on Guantánamo for the next three months.

In the 15 years since the terrorist attacks of September 11, 2001, the United States has systematically undermined many of the key values it claims to uphold as a nation founded on and respecting the rule of law, having embraced torture, indefinite imprisonment without charge or trial, trials of dubious legality and efficacy, and extra-judicial execution.

The Bush administration’s torture program — so devastatingly exposed in the executive summary of the Senate Intelligence Committee’s report into the program, published in December 2014 — no longer exists, but no one has been held accountable for it. In addition, as the psychologist and journalist Jeffrey Kaye has pointed out, although ostensibly outlawed by President Obama in an executive order issued when he took office, the use of torture is permitted, in particular circumstances, in Appendix M of the Army Field Manual.

When it comes to extrajudicial execution, President Obama has led the way, disposing of perceived threats through drone attacks — and although drones were used by President Bush, it is noticeable that their use has increased enormously under Obama. If the rendition, torture and imprisonment of those seized in the “war on terror” declared after the 9/11 attacks raised difficult ethical, moral and legal questions, killing people in drone attacks — even in countries with which the US is not at war, and even if they are US citizens — apparently does not trouble the conscience of the president, or the US establishment as a whole.

As for indefinite imprisonment without charge or trial, and trials of dubious legality and efficacy, both are hallmarks of Guantánamo, and while the prison’s operations are winding down and only 61 men are still held (with 20 of those 61 having also been approved for release), the fate of the remaining 41 men remains of concern.

23 have had their ongoing imprisonment without charge or trial approved in the last few years by Periodic Review Boards (and eight others are awaiting the results of their reviews), but whether they remain at Guantánamo, or whether President Obama, or his successor, succeeds in moving them to the US mainland so that Guantánamo itself can be closed, the basis of their imprisonment remains as troublesome as detentions at Guantánamo have been all along.

If any of these men have allegedly committed crimes (i.e. terrorism), then they should be prosecuted — in federal court, where there is a proven track record of dealing appropriately with those accused of terrorism. If, however, they are soldiers being held off the battlefield, then they should be held in accordance with the Geneva Conventions, and judges should be able to examine whether or not their imprisonment is lawful; in other words, although they can be held until the end of hostilities, is it appropriate to say that hostilities are still ongoing, nearly 15 years after the US-led invasion of Afghanistan began?

For ten other men, trials — or pre-trial charges, at least — have been forthcoming, but in a forum that, as I noted above, involves “trials of dubious legality and efficacy” — specifically, the military commissions that have struggled to establish any legitimacy since they were first revived by Dick Cheney in November 2001. Cheney’s intention, with the support of his senior lawyer, David Addington, was to create kangaroo court trials for “war on terror” prisoners subjected to torture, who could be swiftly and unfairly tried and then imprisoned or executed.

The first version of the commissions limped on until June 2006, when the Supreme Court ruled that the entire trial system lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” Undeterred, the Bush administration persuaded Congress to revive the trials, and they were revived again under President Obama in 2009, although on both occasions wise voices pointed out (see here and here) that because Congress had invented war crimes that were triable by military commission — instead of allowing men to be prosecuted in federal court, where, for example, the most basic charge, providing material support for terrorism, was actually a crime — any convictions secured were likely to be overturned on appeal.

And this is indeed what has happened. Of just eight convictions secured in the commissions’ long and inglorious history, four have been overturned (of Salim Hamdan, David Hicks, Noor Uthman Muhammed, and Ali Hamza al-Bahlul, who is still held), and the legitimacy of two others (Omar Khadr and Ibrahim al-Qosi) is open to question. The only results that have survived intact, in any meaningful sense, are plea deals negotiated by two men who are still held — Majid Khan and Ahmed al-Darbi.

As I explained in March 2014, when I put together my Full List of Prisoners Charged in the Military Commissions at Guantánamo, Khan “accepted a plea deal on February 29, 2012, in which, in exchange for a guilty plea, he will apparently receive a 19-year sentence, although that will not be delivered until four years after his trial,” and al-Darbi “accepted a plea deal on February 20, 2014, in which, in exchange for a guilty plea, he ‘will spend at least three and a half more years at Guantánamo before he is sentenced,’ and will then probably be transferred to Saudi Arabia to serve out the remainder of a sentence that is expected to be between nine to 15 years, ‘depending on his behavior in custody,’ as the New York Times described it.”

Both men’s plea deals were contingent on them providing testimony in other trials, but as is apparent from Khan’s story, he was supposed to be sentenced in February this year, but has not yet testified, because the trials that are still proceeding — for five men charged in connection with the 9/11 attacks, including Khalid Sheikh Mohamed, for Abd al-Rahim al-Nashiri, and for Abd al-Hadi al-Iraqi — appear to be endlessly mired in a pre-trial limbo to which a solution is far from obvious. All were held in CIA “black sites,” and all but al-Iraqi (who arrived at Guantánamo in 2007), were amongst the 14 “high-value detainees” who arrived at Guantánamo in September 2006, when President Bush first conceded publicly that a “black site” program had existed.

And the reason for these seemingly interminable delays? Well, to put it bluntly, the problem is that these men were all subjected to torture, and although much of their story has emerged (not least in the Senate Intelligence Committee report), the government and its prosecutors continue to want all evidence of torture to be suppressed, while the defence lawyers, understandably, insist that trials cannot proceed without torture evidence being produced.

Add to this the fact that the entire commission system — a kind of legal Frankenstein’s Monster — is full of holes that impede the smooth process that could be expected in federal court, and an array of other problems — the defence teams’ persistent problems with securing full discovery of relevant materials, and the tendency of various agencies to try to undermine the entire process, through bugging, spying and destroying evidence, for example, and it becomes apparent that, as I explained in my title for this article, the commissions are not fit for purpose, and should be scrapped and replaced with federal court trials.

In an article to follow, I’ll look at the latest developments in the commissions over the last few weeks — in the case of Abd al-Rahim al-Nashiri, and in the case of Majid Khan, whose sentencing delay can be attributed directly to the glacially slow progress of the entire commission process — but for now, having written little about the commissions for the last two years (since my July 2014 articles, The 9/11 Trial at Guantánamo: The Dark Farce Continues and More Farcical Proceedings at the Military Commissions in Guantánamo — and also see “America’s Shame,” Rolling Stone’s Detailed – and Damning – Article About Guantánamo, from February this year), I intend to catch up on the current situation via a Washington Post article from two weeks ago, “The Guantánamo quagmire: Still no trial in sight for 9/11 suspects,” written by Missy Ryan and published on the 10th anniversary of the arrival of the 14 “high-value detainees” at Guantánamo, which I wrote about here.

The Washington Post’s view of the military commissions

Ryan began by noting how, when George W. Bush announced in September 2006 that 14 “high-value detainees” had arrived at Guantánamo, Col. Morris Davis, the military commissions’ chief prosecutor, “heralded it as a sign of the government’s commitment to attaining justice.” For Davis, as the Post described it, “the end of the suspects’ detention at secret CIA prisons overseas promised a credible legal reckoning in the wake of the Sept. 11, 2001 attacks.”

Speaking to the lawyers on his team, Davis “offer[ed] as a model [for the commissions] the prosecution of Nazi officials that followed World War II,” and said, “I want our grandchildren to look at Guantánamo the way we look back at Nuremberg.” He explained that he an this team “felt we had the ability to conduct these trials in a way that . . . the country would be proud of.”

Ten years later, however, as I also pointed out in my recent article, none of the 14 “high value detainees” have been convicted or sentenced (and Davis resigned in 2007 after he was placed directly in a chain of command under Jim Haynes, the Pentagon’s senior lawyer who approved the use of torture). Proceedings against the five men accused of involvement in the 9/11 attacks and of Abd al-Rahim al-Nashiri are “moving so slowly in preliminary proceedings” that the 9/11 trial “is expected to begin at the earliest in 2020, nearly 20 years after hijacked planes struck the World Trade Center and the Pentagon.”

And yet, in this same period, as Ryan also noted, “hundreds of terrorism suspects have been convicted in federal courts, including members of al-Qaeda captured overseas,” but because Congress “has barred the Obama administration from moving any Guantánamo detainees into the United States, which leaves offshore military commissions as the only legal process available to prosecute them,” and because Obama himself backed down, when faced with criticism, from plans to hold the 9/11 trial in New York (and because, ill-advisedly, he had also revived the commissions at the same time as announcing the 9/11 trial), the broken commission system has been the only venue available for prosecutions of those held at Guantánamo.

As Ryan also noted, with some understatement, the commissions have also been “plagued from the start by detours and scandals, including the legacy of the use of torture against detainees, an FBI attempt to penetrate a defense team and the unexplained censoring of court deliberations, believed to be the work of the CIA,” and while she acknowledged “President Obama’s effort to improve the commissions by giving inmates greater due process,” she also noted that “legal experts and lawyers who have been involved in the trials say the system may be irreparably flawed,” with some lawyers adding that, “even if the cases can be concluded, the process is now seen as so tainted that those verdicts may be publicly dismissed.”

As Richard Kammen, a civilian defense lawyer for Abd al-Rahim al-Nashiri, explained, “The fact that we are here in 2016, probably further from trial than we were in 2011, tells you that this is an experiment that failed.”

Ryan also pointed out how Guantánamo’s location “has been an important factor in slowing the pace of the trials,” explaining:

When lawyers travel to the island for periodic proceedings or client meetings, they must hitch a ride on military planes and stay for several days at a time. When they speak to the detainees, the materials they bring in and out of meetings are closely screened. Despite Pentagon denials, defense lawyers also suspect that communications with their clients continue to be monitored.

Defense lawyers describe a “down the rabbit hole” process in which they lack normal access to evidence, including what their clients said and did during their years-long detentions at extrajudicial prisons overseas, as well as evidence seized during counterterrorism raids.

Legal experts also said, as Ryan put it and as I noted above, that “the untested nature of the commission system, which unlike civilian courts is operating without the benefit of relevant legal precedents to guide it, has slowed the process.” As David Nevin, a civilian defense lawyer for alleged 9/11 architect Khalid Sheikh Mohammed, explained, “We’re 13 years down the road, and you’re just now getting the defendants’ statements to the judge. That’s pretty amazing if you’ve been around the criminal justice system.”

In terms of obstruction, Ryan also mentioned how, earlier this year, “defense lawyers learned that a judge had secretly allowed the prosecution to destroy evidence related to a CIA prison, reversing a previous judge’s order without notifying them.”

That is an extraordinary way of undermining any faith that anyone may have had in the fairness of the system, but it is symptomatic of the fundamental disregard for the norms of justice the has typified the commissions from the very beginning.

As Ryan explained, it also “remains unclear” what material from the Senate Intelligence Committee report, with its references to torture including waterboarding and “rectal rehydration” — the single most shocking piece of new information in the report — will be allowed, and whether “considerations will be made in court for the mistreatment of detainees.” With reference to the case of Abd al-Rahim al-Nashiri, accused of masterminding the attack on the USS Cole in 2000, who “has not received meaningful treatment for the significant psychological and physical effects he has suffered” as a result of his torture, Richard Kammen pointed out that he “is profoundly damaged by what the CIA did to him.”

Missy Ryan also explained how some lawyers say that the commissions have “fundamentally different goals than the civilian courts.” James Connell, one of the attorneys for Ali Abdul Aziz Ali (aka Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi), who is one of the 9/11 defendants, said, crucially, “It is not a justice system in the way we in the US think about it. It is instead a hybrid specialized system that was set up with the purpose of concealing evidence of torture.”

Ryan added that it is “possible that the trials will eventually be dropped, if political leaders decide that they are unfeasible or if moving forward would force the government to disclose information seen as too damaging,” and she spoke to legal experts who say, as I do, that transferring the cases to federal court is the only solution. As she noted, federal courts “have proved that they can handle complex terrorism cases, like that of Boston Marathon bomber Dzhokhar Tsarnaev, who was sentenced to death two years after the crime.”

Stephen Vladeck, a law professor at the University of Texas at Austin, and a former Guantánamo defense lawyer, said, “We’ve lost sight of the basic question, which is: Why are we trying these people? If the answer is to obtain some measure of justice for their heinous acts, the question the next president has to ask is whether it’s more likely … in a federal system or a Guantánamo military commission.” He added, “I think that question answers itself,” the answer being, to reiterate the title of this article once more, that the commissions are not fit for purpose and should be scrapped and the cases moved to federal court.

In the meantime, however, the bleak, broken ballet of the commissions continues.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).