18 Years After 9/11, Why Is Guantánamo Still Open?

On the 18th anniversary of 9/11, I was sitting in Guantánamo Bay observing pre-trial hearings in the case against some of those alleged to have conspired in carrying out the devastating attacks. Sitting with me were other observers representing various organizations, a handful of journalists, and a group of victims’ family members, some wearing pins showing their deceased loved ones. We had all arrived a few days before on a charter flight from Andrews Air Force Base. The day after we landed, the world learned that President Donald Trump had canceled a planned meeting with the Taliban at Camp David that would have coincided with the anniversary of the attacks, a jarring juxtaposition.

That a child born on that day the planes hit would by now have gained the right to vote, but there has yet to be a trial of the alleged attackers, serves to highlight how painfully slow the process at Guantánamo is proceeding. It also serves as a reminder that the U.S. has yet to solve the problem that is Guantánamo. Trump, on the campaign trail, vowed to keep the Guantánamo Bay detention facility open and to “load it up with some bad dudes.” Instead, it remains in his—and the nation’s—interest to close it.

In the courtroom on September 11th, on the other side of the sound-proof glass from where I sat, were two of the five defendants in the case: Khalid Sheikh Mohammed, the alleged planner of the attacks, and his nephew, Ammar al-Baluchi. The other three defendants in the case—Walid bin Attash, Ramzi bin al-Shibh, and Mustafa al-Hawsawi—had appeared in court earlier that week but chose not to that day. Providing adequate medical care for these and other detainees as the years drag on with no release or transfer in sight has required the government to contemplate significant new and costly investments in the Guantánamo detention facilities for an aging inmate population.

Grouped at individual tables with the defendants in court were members of the men’s defense teams, made up of both military and civilian lawyers and staff. Because the death penalty is on the table, each defendant is required to have a “learned counsel,” i.e., an attorney with substantial experience defending death penalty cases. While I was there, a new learned counsel assumed that role for Mohammed, and among his previous clients had been Ted Kaczynski, a.k.a. the Unabomber.

Also in the courtroom were prosecutors, made up of both military and Justice Department attorneys, and the newly appointed judge in the case, Air Force Col. Shane Cohen. Both in the courtroom and the viewing gallery were numerous military police, with the nametags on their uniforms anonymized to prevent possible reprisals. Video and audio of what was transpiring through the glass was on a 40-second delay that allowed the government time to cut the transmission to the observers if anyone in court revealed classified information. At other times, whole sessions that observers cannot attend are dedicated to discussing classified information.

Cohen is the third judge to oversee proceedings in the 9/11 case, and he was appointed only weeks before, in June. Nevertheless, he swiftly took a step that previous judges had not, and which has infused the hearings with a new-found urgency: setting a trial date. As Cohen described it at one of the hearings, “for seven years, as I look at it, we have been in this quagmire of no order or process to addressing these substantive issues. … And so, seven years later, I’m coming back and looking at that law and saying I’m going to right what I believe should have happened in the first place.”

The judge’s announcement of a trial commencement date of January 11, 2021, and various intervening deadlines, has sped up the government’s production of discovery, and also brought to the fore logistical considerations regarding how to accommodate the presence of large numbers of media, observers, defense, and prosecution for the trial, which some speculate could last about nine months. The existing structures in and around the “expeditionary legal complex,” as the court is known, are not sufficient, notoriously run-down and used only in short increments of a couple of weeks. One official noted they had even considered docking a cruise ship in the bay to be used as additional housing. That the week that I was observing proceedings was only the first in a three week stretch—the longest of the 28 hearing periods in that case to date—was also a reflection of the new-found urgency. Nonetheless, Cohen mentioned a number of times that the announced trial date was subject to change as he reevaluated progress.

The treatment of the defendants while in CIA custody between their capture in 2002 and 2003, and the Bush administration’s public acknowledgement of it in 2006, still haunts the proceedings today. Indeed, one of the main issues the parties were debating in the week I was observing was whether evidence obtained from the defendants by so-called FBI “clean teams,” who solicited evidence from the defendants after the CIA had previously tortured them during questioning, was admissible. The defense proffered that they would show that, in fact, the FBI was involved in numerous ways in the CIA’s abusive questioning—known as the Rendition, Detention, and Interrogation program. This assertion was borne out to some extent in the FBI testimony provided in the following weeks. The defense argued that, “the whole narrative of what everyone in this courthouse believes happened on 9/11 sprang from the dissemination of information from these statements acquired by torture.” For its part, the prosecution asserted that they would show that when the defendants were speaking to the FBI “the accused were not just acting voluntarily, … but truly proudly.”

Even if the defendants were acquitted they would likely not be released, and the cost to the taxpayer of holding them and the other 35 detainees at Guantánamo is substantial. Recent reporting revealed the yearly cost of holding each of the detainees at Guantánamo is $13 million, far costlier than detention in U.S. federal prisons, where the most dangerous prisoners are held for $78,000 per year. Those costs are likely to increase as the detainees age. For instance, a contemplated facility to house only a fraction of the detainees as they age and need increased medical care comes with an $88.5 million price tag. In reaction to the news of the per detainee outlay, Trump stated “I think it’s crazy. It costs a fortune to operate, and I think it’s crazy.”

And Trump is right: It is crazy, as is keeping Guantánamo open. Thus far, Trump has not carried through on his threat to “load up” Guantánamo. Instead, it appears no new detainees have been sent there under his administration. He can genuinely say that Guantánamo, and its costs, are an issue he inherited. And closing the Guantánamo detention facility in order to end the arterial bleeding of funds there would be in keeping with Trump’s claimed desire to rein in federal spending. Perhaps the best part, from Trump’s perspective, is that it would give him the ability to say that he did something President Barack Obama couldn’t. In fact, just a few days ago Trump stated, “Look, President Obama said that Guantánamo Bay would be closed, and he never got it done.”  That closing Guantánamo would also be the right thing for American values and national security interests can be a result that others celebrate.

Congress has for years prohibited the expenditure of funds to transfer Guantánamo detainees to the U.S. However, there are indications of small openings for sanity. The House version of the 2020 defense funding bill (NDAA) excluded such a provision.  And for the last few years, the Senate Armed Services Committee has advocated allowing transfer of detainees to the U.S. for medical treatment. Trump making the closure of Guantánamo a priority could go a long way to persuading Congress to remove this technical hurdle.

If he wants to upstage his predecessor, Trump should take the necessary steps to close down the detention facility there. In the meantime, as long as the proceedings in the 9/11 case continue under Cohen, it’s clear he takes his responsibilities seriously. He opened the September 11 hearing by stating:

“In this particular case, not only have I been asked to [ensure] a fair trial, but to sit in judgment in many instances of my own country and its actions. I get the weight of that decision. I get the weight of the impact of the decision that I’m making. Never underestimate the weight that I feel each and every day with the decisions that I make that impact the lives of people all over the world.”

Photo by John Moore/Getty Images

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide