My entire experience at Guantánamo was a rude awakening. I believed in the system after the first failed effort at prosecuting alleged terrorists was repaired in the Supreme Court case Hamdan v. Rumsfeld, where the court acknowledged the unconstitutionality of the process. I thought our pursuit of justice could be fair and impartial, and an example to the world. I was wrong. Everything I saw and experienced while serving in that assignment convinced me of that. Nothing I’ve observed since has changed my mind.
For years, leaders across the political, legal and humanitarian spectrum have called for the prison at Guantánamo to be closed. Thus far, the Biden administration has paid only lip service to that idea, except for clearing the potential release of three detainees who are still in custody. Without a comprehensive plan for trying the others — or, the more politically difficult alternative, releasing many of them without trial — closing the facility is impossible. Practically, this would mean coming to terms with the crimes the United States has committed: torture, extraordinary rendition and indefinite, illegal confinement — all of which are antithetical to our concepts of justice and international norms. Can you imagine the outrage if an American were snatched off the streets of Cancún, Mexico, accused of crimes, tortured until they confessed and held for more than 10 years without trial? It would be an act of war.
Except for U.S. v. Hamdan and the case against Bahlul, we have been unable to successfully litigate a tribunal since Sept. 11, 2001. Two decades of failed efforts speak for itself — no tribunal held in Guantánamo after nearly 20 years of unlawful confinement could come to a conclusion that the legal or humanitarian community will accept. The recent ruling in U.S. v. Nashiri — saying a jury can’t hear evidence derived from torture, but the same evidence can be introduced to bring an accused person to trial — is too little too late; it’s a Band-Aid that only accentuates the failures of the process.
As an American, a former military officer and an attorney, I am disgusted by what I witnessed during the George W. Bush presidency and continued to observe over the next two administrations. A short list includes the lack of transparency; the fiscally irresponsible cost of maintaining the prison; the intelligence community’s continued lack of cooperation; the palpable anti-Arab, anti-Muslim sentiment; and charging ex-post facto crimes such as “material support for terrorism” that didn’t exist before 9/11, in violation of the U.S. Constitution.
Legally, the answer is as simple as it is politically difficult. Of the original approximately 780 original detainees, 40 remain — almost all of whom have been detained for 15 years or more — and only seven are facing a military trial. Some prominent voices are calling for the immediate release of the 28 prisoners who have yet to be charged with any crime. That should be done, but it does not go far enough. We should bring the individuals who can be tried to the United States for prosecution in federal courts. Release the rest. Yes, there will be recidivism, but we must address that on the battlefield, not by continuing to abandon our judicial standards of right and wrong.
To those who fear bringing committed terrorists to prisons on U.S. territory: They are already here. To those who think civilian federal courts can’t handle crimes of international terror: They already have — almost 1,000 cases of international terrorism have been prosecuted by the Justice Department since 9/11, with an 84 percent record of conviction.
Guantánamo was designed to bypass the Constitution and the U.S. criminal justice system. It failed because that idea is contrary to American principles. Putting it more bluntly: When it comes to our foreign enemies, we must kill them or arrest and try them for their crimes. Anything else is a setup for failure. If this administration is committed to ending the forever wars of 9/11, it cannot do so without closing one of the last vestiges of them. If we can bring home our troops from Afghanistan by September 2021, we can close Guantánamo by then as well. We must.
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