Guantanamo: A former prosecutor’s solution to an ‘unsolvable problem’

Detainees in orange jumpsuits sit in a holding area while being watched by military police during in-processing to the temporary detention facility at Camp X-Ray of Naval Base Guantanamo Bay on Jan. 11, 2002.
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The Biden administration wants to shutter Guantanamo Bay, but how to do that remains unclear.

Twenty years after the 9/11 attacks, military commission proceedings for the plotters are still in the pretrial phase. The earliest estimate for a 9/11 trial to begin is 2024.

Why We Wrote This

There’s no simple way to close Guantanamo Bay. According to one former prosecutor, political courage may be the key to justice in this case.

Some fault the military courts for being ineffective. Only eight convictions have been won in the past two decades – half of which were overturned. Federal courts, by contrast, have secured more than 660 terrorism convictions since 9/11. The trials for the Benghazi attacks were conducted in federal court, for example, with guilty charges for all.

Others fault the military courts for being unjust. Air Force officer Omar Ashmawy, a former prosecutor of Guantanamo detainees, is among them.

Even if the worst-case scenario happened, he says, it would be worth suspending military commissions and trying the cases in federal court. “Maybe some of them get acquitted. Maybe they return to the battlefield,” he says. “But if we cannot try these individuals with the protection that we would expect to give to ourselves and our own citizens, then they shouldn’t be tried. They should be released.”

“Indefinite confinement, without any meaningful rights, is simply too damaging to the soul of the U.S.,” he concludes.

When Omar Ashmawy, then a United States Air Force officer, volunteered for the job of prosecuting Guantanamo Bay detainees in 2007, he had high hopes for America’s prospects of dispensing justice. 

“I believed in the idea that military tribunals historically have been a way for nation-states to resolve crimes against humanity, and I think terrorism very much qualifies as a crime against humanity,” he says. 

The Supreme Court had recently ruled that the Bush administration’s process for trying terrorist suspects violated their rights – as well as the Geneva Conventions – by, among other things, barring defendants from viewing the evidence against them. That was a promising development, he thought. 

Why We Wrote This

There’s no simple way to close Guantanamo Bay. According to one former prosecutor, political courage may be the key to justice in this case.

At the same time, someone he “very much respected” was the Defense Department’s chief prosecutor at the time. “If that individual was willing to put his name behind the process, then that was something I was comfortable doing as well.”

But just a few weeks after Mr. Ashmawy reported for duty, that same individual resigned in protest, saying he no longer believed that fair trials for the suspects were possible. 

“I guess if there was any moment that drove home my concerns, it was that one – but it was really just the beginning,” he says. “It was a slow, incremental revelation that the more you saw behind the curtain, the less you really could trust the process. I went in thinking I could do good.” As time went on, he concluded that he was “more or less assisting a system that was not geared towards doing what it was arguably set up to do.”

Public statements of disillusionment like Mr. Ashmawy’s have long been a catalyst in demands to shut down the detention center, which critics argue is an ugly stain on the democratic ideals of the United States – particularly when coupled with the documented torture of those held there. 

The Biden administration wants to shutter the prison. Defense Secretary Lloyd Austin told lawmakers in advance of his January confirmation hearings that he believes it should be closed, adding that he would “direct my staff to work with other administration officials to develop a path forward for the remaining” detainees.

Despite there being no obvious path forward for some of the prisoners – most of whom have been held for 20 years without trial – the administration appears to be working quietly to move them out of Guantanamo and turn the page on what many see as a failure of justice.

“There definitely are things going on behind the scenes, names that have been given to me of different people who are taking different pieces of it,” says Karen Greenberg, director of Fordham University School of Law’s Center on National Security.

Alex Brandon/AP/File
A flag flies at half-mast Aug. 29, 2021, in honor of the U.S. service members and other victims killed in the terrorist attack in Kabul, Afghanistan, as seen from Camp Justice in Guantanamo Bay Naval Base, Cuba. Military commission proceedings for detainees charged with war crimes are held at Camp Justice. Most of the 39 men still being held at Guantanamo have never been charged with a crime.

While former President Barack Obama put closing the prison at the center of his platform, only to see his marquee goal thwarted over the course of his two terms, President Joe Biden has held his plan close to the vest. 

“I understand the preference for doing this quietly, rather than with a lot of fanfare, and I think that’s right. It’s the lesson from Obama: the quieter the better,” says Dr. Greenberg.

“Just in terms of the size of the population, it’s a small bus of people,” adds Michel Paradis, a senior attorney for the Department of Defense who is regularly appointed to represent Guantanamo Bay detainees. “You can figure that out.”

An almost-empty prison

The population of the detention center has been reduced from some 675 in its heyday in 2003 to 39 today. Ten more detainees have been cleared for release, provided the White House can find other countries willing to take them and adhere to U.S. surveillance requirements. An additional 17 are eligible for evaluation by a periodic review board to determine whether they can be transferred, if they are not found to pose “a continuing significant threat” to the U.S. 

At the same time, 20 years after the 9/11 attacks, military commission proceedings for the plotters are still in the pretrial phase. After a 17-month pause during the coronavirus pandemic, jury selection – meant to start last January – has not yet gotten underway. The earliest estimate for a 9/11 trial to begin is 2024.

Some are wondering why the trials are plodding ahead at all. Aside from their myriad delays and well-documented legal shortcomings, military courts have garnered just eight convictions in the past two decades – half of which have been overturned – at a total cost, in operations and trials, of more than $6 billion. 

Federal courts, by contrast, have secured more than 660 terrorism convictions since 9/11 – including more than 110 in which the defendant was captured abroad – with a conviction rate upward of 90%. The trials for the Benghazi attacks of 2012 were conducted in federal court, for example, with guilty charges for all and “almost no fanfare,” Dr. Paradis says.  

Molly Riley/AP/File
Protesters with Witness Against Torture participate in a rally outside the Supreme Court in Washington, Jan. 11, 2017. Calling for the closing of the Guantanamo Bay prison, they are marking the 15th anniversary of the first Afghan prisoners' arrival at the detention center.

“The idea that you couldn’t mount a successful, just, and transparent trial of the alleged 9/11 plotters in federal courts is just belied” by these figures, he notes. “The civil libertarian in me has anxiety on this point, but it’s actually not that hard to convict people” of terrorism in America. “These federal crimes are written extremely broadly.”

But federal trials have not been an option, since lawmakers have for years woven prohibitions barring the Pentagon from bringing suspects to U.S. soil into the annual defense budget.  

Last month, however, the House version of the $768 billion 2022 National Defense Authorization Act ended this ban with a bipartisan vote.

The Senate still needs to pass its own version of the bill, which currently includes the prohibition. And eight Republican senators, including Ted Cruz of Texas and James Inhofe of Iowa, wrote a letter in May to Mr. Biden expressing concern that “the 40 remaining detainees are all high risk.”

Federal prisons holding them would be enticing terrorist targets, lawmakers have argued. “Consider the propaganda value for ISIS if it successfully sprang a hardened Gitmo terrorist on American soil,” Republican Rep. Scott Perry of Pennsylvania said in a 2016 hearing. “Anyone who thinks this is impossible is suffering from, as the 9/11 Commission put it, a ‘failure of imagination.’ ”

Major County Sheriffs of America, which represents sheriff’s offices from the largest counties, has weighed in as well, warning that “detainees deemed too dangerous to release should not be brought to the homeland where they will pose a threat to the local communities we serve.”

Such “pearl clutching” concerns that Guantanamo Bay detainees could not be safely held in a federal prison are “ludicrous,” Dr. Paradis says. The U.S. houses “more and worse people in regular prisons every day.” 

The men are also 20 hard years older; Trump-era renovation plans for Guantanamo Bay include provisions for wheelchair ramps. “So the idea that we have to be worried about two dozen individuals as if they were somehow the X-Men is propaganda,” Dr. Paradis adds. “It’s fear-mongering.”

“Too damaging to the soul of the U.S.”

Yet even if the worst-case scenario happened, it would be worth suspending military commissions altogether and trying the cases in federal court, says Mr. Ashmawy, the Air Force prosecutor. “Maybe some of them get acquitted. Maybe they return to the battlefield,” he says. “But if we cannot try these individuals with the protection that we would expect to give to ourselves and our own citizens, then they shouldn’t be tried. They should be released.”

He pauses. “That’s a very difficult thing to say, because it comes with a certain sacrifice – but the prison at Guantanamo Bay is an unsolvable problem unless someone is going to make a decision to accept a level of political risk.”

To date, the Biden administration has shown this sort of “political courage and an incredible ability to ignore the criticism that’s tied to these old and stale debates – to take the hard knocks” in places like Afghanistan, for example, Dr. Paradis says.

Such willingness to take on political and even physical risk is vital for democracy, says Mr. Ashmawy, a first-generation American whose father is from Egypt and mother from Italy. “I always felt like our family experience was very blessed, and I wanted to do something to give back to this country. The military seemed to me like the best way to do that.”

Yet his experience prosecuting Guantanamo Bay detainees for military commissions convinced Mr. Ashmawy that it’s not a process worthy of the America he admires. This view crystallized for him after he secured a guilty verdict in August 2008 against Osama bin Laden’s personal driver, Salim Ahmed Hamdan.

The military jury concluded that he provided material support to Al Qaeda, but acquitted him of terrorism conspiracy charges. Mr. Hamdan was sentenced to 5 1/2 years in prison, with credit for the five years he’d already served at Guantanamo Bay. 

Then came the twist. “An official statement was made that whatever his sentence by a military jury, it didn’t matter,” Mr. Ashmawy recalls. A Pentagon spokesman said that even after Mr. Hamdan had completed his sentence, the DOD could continue to classify him as an enemy combatant and detain him indefinitely. “The longer this charade has continued, the easier the decision was in my mind [to stop prosecuting detainees],” Mr. Ashmawy says. “I mean, how much longer are we going to hold them? Forty years? It’s already been 20. Is the plan to hold them until they die?” 

It’s a question that emerged this week in the first case involving a Guantanamo Bay detainee heard by the Supreme Court in more than a decade. The detainee known as Abu Zubaydah challenged U.S. government efforts to block testimony about torture at secret CIA “black sites.” The treatment of Mr. Zubaydah – including intensive waterboarding and being locked in what was essentially a coffin for hundreds of hours – was among the most appalling revelations in the Senate Intelligence Committee’s 2014 report. The CIA ultimately concluded that Mr. Zubaydah “was not a member of Al Qaeda,” yet he has remained in U.S. custody at Guantanamo Bay. “I don’t understand why he’s still there after 14 years,” Justice Stephen Breyer said during oral arguments Wednesday. 

Mr. Hamdan, for his part, was transferred to Yemen in November 2008 and released under supervision by the government there in January 2009. In 2012, his conviction was overturned by the U.S. Court of Appeals for the District of Columbia Circuit, and he was acquitted of all charges. 

This move was to the credit of the U.S. federal courts, Mr. Ashmawy says. “Indefinite confinement, without any meaningful rights,” he adds, “is simply too damaging to the soul of the U.S. to accept.”

Editor's note: An editing error in Defense Secretary Lloyd Austin's quote has been corrected.

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