Sixteen years after the 9/11 attacks, the notorious prison at Guantánamo Bay
is still occupied, trials continue to be delayed, and the costs keep
mounting. (photo: Peter van Agtmael/Magnum)
Another 9/11 Anniversary at Guantánamo, Amid Hurricane Irma
By Amy Davidson Sorkin, The New Yorker
12 September 17
Early last week, even as the United States military was scrambling to move
resources ahead of Hurricane Irma, it was loading a surgical team onto a
Navy C-40 jet, headed to the base at Guantánamo Bay to operate on a
prisoner. The team, Carol Rosenberg, of the Miami Herald, reported, included
a neurosurgeon, a neuroradiologist, an operating room nurse and a pair of
neurosurgical technicians, with a couple of pallets of medical equipment in
tow. Their patient, Abd al Hadi al Iraqi, who also goes by the name of
Nashwan al Tamir, is an alleged Al Qaeda commander who is fifty-six years
old and has been held at Guantánamo for ten years; according to the doctors
his lawyers had consulted, his chronic spinal problems had flared up in a
way that, if not treated, could leave him partly paralyzed. The bases
medical facilities are not equipped for such a procedure. Given that the
commander was in the midst of battening down the facilities, it might have
made practical sense to simply medevac Hadi to a military or prison hospital
somewhere else. But that would have been against the law: in 2010, Congress
passed legislation that made it practically impossible to bring any
Guantánamo prisoner to the United States, even temporarily, even at the
Presidents order. And so the doctors and nurses and technicians got on a
plane, and flew toward Irma.
In some ways, Hadi is an unusual prisoner. Of the forty-one people still
held at Guantánamodown from two hundred and forty-two when President Barack
Obama was inauguratedhe is one of only seven who face charges before a
military commission. The others are Khalid Sheikh Mohammed, the admitted
master planner of the September 11, 2001, attacks on the World Trade Center
and the Pentagon; four of his co-conspirators; and Abd al Rahim al Nashiri,
who is accused in the 2000 attack on the U.S.S. Cole, in waters near Yemen.
Mohammed was captured in 2003almost fifteen years agobut his trial has yet
to begin. In a series of hearings in recent weeks, the prosecution submitted
a proposal to finally get things rolling in January of 2019. The defense and
the military judge both indicated that even that date would be wildly
ambitious. Last month, when President Trump announced his Afghanistan policy
with the news that the United States would send another round of troops to
fight there, he and others remarked on the widespread frustration about the
length of the war. The Twin Towers fell sixteen years ago today, meaning
that young Americans who were not even born then could soon be fighting in
the Afghan war. The same could be said about the guards at Guantánamo. But a
measure of the futility of the legal response to the attacks is that there
will soon enough be young military officers, at least eligible to serve as
the equivalent of jurors on the military commission, who were also born
after 9/11.
In part, the delays are due to some of the same practical factors that led
the military to fly a surgical team to Guantánamo when it had plenty else to
worry about in the Caribbean: figuring out where to house the lawyers and
other personnel, for example. And there is only one courtroom at what is
known as the bases Camp Justice that is equipped for proceedings using
top-secret classified evidence, which is what both the 9/11 proceedings and
the U.S.S. Cole trial, which a second judge, Colonel Vance Spath, is
presiding over, would be. (Both are also death-penalty cases, which
introduces another layer of complexity and, rightly, lawyering.) That
courtroom was initially double-booked for several pre-trial hearings, with
both cases pencilled in for the same dates in 2018. The idea was that this
might be managed with a second shift. The Heralds Rosenbergwho, often
enough, is the only reporter at these proceedings, doing the work, on her
own, that might be shared by dozens of journalists in a civilian
courtroomwrote that, when Judge Pohl learned of that plan, he didnt react
well. This case will not be night court, O.K.? Pohl said.
Rosenberg noted that it might not have to come to that. Given how often the
military cancels hearings, the dates had an imaginary quality to begin with:
you schedule two on a day and end up with neither happening. But Pohl was
raising an important point about something else that the proceedings have
lacked, namely dignity. There were supposed to be hearings for both the 9/11
and the Cole cases in July, but Pohl and Spath put them on hold because, for
one reason or the other, the Navy didnt want to provide a fast boat to take
the judges and their staffs from the airstrip to the courthouse, saying that
they should just get a ride with victims families and the prosecution and
defense lawyers. The judges objected, saying that this threatened their
independence and violated their rules against co-mingling. The resolution
involved the transfer of three hundred dollars from the Pentagon to the
Navy; it took about a month to work out that deal. For perspective, it costs
about four hundred and forty million dollars a year to maintain Guantánamo
prison, or more than ten million dollars per inmate.
But, as absurd as the boat dispute might sound, it illustrates not only the
logistical complexities of holding what should be the trial of the century
on an isolated offshore base but the fact that, even now, the legal
procedures are largely improvised. The military commissions are neither
traditional courts martial nor civilian courts but a system slapped together
after 9/11, partly in reaction to Supreme Court rulings in favor of
Guantánamo prisoners being denied basic rights. As William Finnegan laid out
in a recent profile of Zainab Ahmad, an Assistant U.S. Attorney in the
Eastern District of New York, Americas civilian courts actually have quite
a good record prosecuting terrorists so far, with six hundred convictions
just since 9/11. (Ahmad has won thirteen of those herself.) The military
commissions have only produced eight convictions, most as the result of plea
deals in connection with transfers to other countries, and four of those
have been overturned, in whole or in part. (Three convicted prisoners remain
at Guantánamo: two awaiting a sentence, and one serving one.) Civilian
courts also have time-tested procedures for dealing with classified
material. In contrast, the latest round of military-commission hearings came
to a halt at one point when everyone realized that, although the prosecution
and defense lawyers had been given clearance to see a certain document,
Judge Pohl had not. While that was being sorted out, there was a rush to
hide the evidence from the judge who was expected to rule on it.
Khalid Sheikh Mohamed and Nashiri are Guantánamos marquee names. Five other
prisoners, though, have been cleared for release, a long process that
includes multiple agencies determining that they pose no threat. These are
people who probably never should have been sent to Guantánamo in the first
place; in some cases, they were ordered released many years ago but are
still being held. (One problem is figuring out where to send them.) There
are also twenty-six people who are known as forever prisoners, meaning
that the Obama Administration was too uncertain about their innocence to
release them but too timid to file charges against themwhether this was out
of fear of an acquittal or because something embarrassing to the government
might have emerged, it is impossible to say without a trial. President Obama
enshrined this hesitation in a process of periodic reviews. The status of
these prisoners remains what it is: indefinite detention on no charge, a
distinctly un-American condition. The day before Obama left office, he sent
a letter to Congress complaining that politics had kept him from closing
the base. That is true, to an extent: even though George W. Bush had
transferred twice as many prisoners as Obama ever did, once Obama took
office, the Republicans used the prison issue as a cudgel. When the Obama
Administration put together a comprehensive analysis demonstrating, among
other things, that supermax prisons did a good job of holding even the worst
terrorists, Senator James Inhofe, the Republican of Oklahoma, said that the
report was simply giving cover to President Obama so that he can continue
what he is already actively working towards, which is bringing terrorists
onto U.S. soil. But politics is not something that just descends on a
President, like a hurricane. Even before Congress made it much harder, the
Obama Administration had muddled its chances to close Guantánamo. In 2009,
Attorney General Eric Holder said that he would bring Mohammed to New York,
to stand trial in federal court. This was the key moment; we might have had
a trial years ago if the Administration had stuck to that decision. But, in
the face of opposition from Republicans and local politicians, the
Administration backed down.
What this means, in short, is that although Obama scaled Guantánamo down,
and brought it a great distance from the days when prisoners were abused
there, his successor, Donald Trump, could easily scale it up again. He has
said that he wants to keep it open: during the campaign, he said, Were
gonna load it up with some bad dudes, believe me, were gonna load it up.
That hasnt happened yet, but, last week, Secretary of State Rex Tillerson
announced that the job of the State Department official assigned to work on
closing Guantánamo would be eliminated. The retired general John Kelly,
Trumps chief of staff, oversaw Guantánamo when he led the militarys
Southern Command, and has dismissed criticisms of the site as media
exaggerations. Soon after the three-hundred-dollar boat-ride dispute, the
Pentagon awarded a forty-three-million-dollar contract for a new fibre-optic
system for the base. There are plans for a half billion dollars in
construction projects, including a new hospital.
Meanwhile, the base made it through Irma relatively well, with downed power
lines but few signs of damage, an officer told Rosenberg. There were, she
reported, a few wet spots in the courtroom ceiling, which would need new
tiles. The next time hurricane winds shift to Guantánamo, it might be better
prepared. And the 9/11 trial, with its maddening mix of tragedy and
absurdity, and its too-delayed promise of justice, might even be under way.
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