Guantanamo Bay debate misses point
When President Obama laid out his latest strategy for closing down the controversial prison facility at Guantanamo Bay, Cuba, on Tuesday, it reignited the debate over where the detainees from our ongoing war on terror should be held.
Politicians vowed to fight to keep those detainees out of federal facilities in their states, while Republican leaders in Congress rejected the proposal outright. Obama talked about the moral imperative of “closing a chapter in our history,” and many echoed his belief that the prison serves as a recruiting tool for the Islamic State and other terrorist organizations.
The placement of those detainees is no doubt an important question to ponder, but the debate this week left me wondering if it misses the bigger point: how the United States should prosecute the detainees.
Do Americans even care about the government’s ability to provide them a fair trial for their alleged crimes? Do we just assume that the remaining 91 detainees are guilty or that the military commission process is irrevoca- bly tainted and move on with our lives?
I got a look at the process during trips to Guantanamo starting in 2008. At the time, the military commissions established under President George W. Bush had been hammered by the Supreme Court in rulings that found, among other things, that the courts violated U.S. military law and the Geneva Conventions.
Prosecutors and intelligence officials assured reporters the system had been fixed and the upcoming trials would be fair.
Their first trial was that of Salim Hamdan, accused of being Osama bin Laden’s driver when the al- Qaeda leader orchestrated the bombing of the USS Cole and the 9/11 attacks.
In a cramped courtroom inside an old airport tower overlooking an airfield on the southern tip of Guantanamo, prosecutors convicted Hamdan of providing material support for terrorism. Word quickly came down from the White House, where a spokesman for Bush hailed the ruling as the culmination of a “fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States.”
What I and the other reporters didn’t realize was how quickly that landmark conviction would fall apart.
Hamdan was acquitted of the most serious charges, so he was sentenced to little more than time served and returned to his home in Yemen. Years later, his conviction was thrown out entirely by the D.C. Circuit Court because Hamdan’s actions were not a crime when they happened — they were only criminalized by the Military Commissions Act of 2006, passed in response to the Supreme Court rulings.
Around the same time, we got our first glimpse of the biggest catch of them all — Khalid Sheikh Mohammed, the mastermind of 9/11. He was set to be tried along with four co-defendants in a courtroom built specifically for them.
At his first hearing, Moham- med said he would welcome martyrdom for his actions, telling the judge, “In Allah I take refuge.”
At the time, those cases were going through pretrial motions in preparation of their trial, where the defendants faced murder charges for all 2,976 victims of the 9/11 terrorist attacks. Eight years later, those pretrial hearings are still going on.
The men were back in that same courtroom this month, where defense lawyers continued arguing over such fundamental questions as getting access to evidence against their clients.
Hamdan’s case, that of a relatively low-level al- Qaeda opera- tive, became an example of how difficult it is to carry out such a complex legal proceeding created in the aftermath of 9/11.
The cases of Mohammed and the other 9/11 plotters continue to show the difficulty of getting higher-profile cases to trial.
John Altenburg, a retired Army major general who oversaw the commissions from the Pentagon from 2004 to 2006, says the long delay is, in fact, proof that the detainees are being afforded an exhausting level of due process and legal remedies.
“The process is falling over itself providing due process for these people, and that’s taken a long time,” says Altenburg, now counsel at the Greenberg Traurig law firm in Washington. “The delays that have occurred actually reinforce that it’s a very fair process.”
Or, it could mean that it’s finally time for a switch to U.S. federal courts, which continue convicting — and upholding convictions — of accused terrorists.
I understand the concerns many national security experts have over transferring the Guantanamo detainees to U.S. soil, where they will receive added protections under our judicial system. But at the very least, we should be having that debate.