It’s been an uncharacteristically Guantanamo-news-filled few weeks – some good, some bad, some ugly. Here’s a quick rundown of recent developments.
The Good: Majid Khan’s Transfer, and the Biden Administration’s Much Welcome Position on U.N. Access to Guantanamo
Last Thursday, Majid Khan touched down in his new home, Belize, after almost 20 years in U.S. custody – three at CIA black sites (one of which he came to call “The American Torture Palace”), followed by another 16 at Guantanamo. “My name is Majid Khan,” he said in a statement, “and I am a real person. I am a human being. I am a Muslim man, and I first want to thank God for freeing me . . . I have been given a second chance in life and I intend to make the most of it.”
Khan’s case has received a fair amount of attention, in large part because, after pleading guilty in the military commissions, taking responsibility for his prior actions, and cooperating with the government for over a decade, he was the first CIA torture program victim allowed to tell his story, publicly and in his own words. The military jurors to whom he spoke at his sentencing hearing were so disgusted by what they heard that they spontaneously hand-wrote a note to the Convening Authority lambasting Khan’s torture and extra-legal detention, and recommending clemency. As Joe Margulies wrote at the time, in that moment, the jurors saw Khan in a way that people almost never see the men at Guantanamo; the same way Khan reintroduced himself to the world last week: “a human being. Flawed. Weak. Sorrowful. Which is to say . . . one of us.”
Khan’s transfer is notable in a number of other respects as well. He is the first CIA torture program victim released from Guantanamo, and the Biden administration’s first third-country resettlement. The latter is important because resettlements tend to be more complex than repatriations, and, whether due to humane treatment concerns or congressionally-imposed transfer bans, only a handful of the remaining men can return to their home countries.
What’s more, the administration transferred Khan a day after the United Nations announced that the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ní Aoláin, will undertake a technical visit to the United States, including traveling to Guantanamo this week. Credit the Biden administration for working with Ní Aoláin and her team to negotiate terms that she could accept, in particular allowing her to meet, presumably confidentially and unsupervised, with detainees, and to visit the entire detention facility. In 2012, the Obama administration invited Juan Méndez – then-Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment – to visit Guantanamo, but drew a red line on access to detainees and certain parts of the facility, and so Mendez declined. One of Ní Aoláin’s predecessors observed military commission proceedings in 2007, but did not visit the detention facility because he was similarly denied such access.
Breaking with prior administrations on this issue reinforces not only the Biden administration’s commitment to closing Guantanamo, but also its respect for the basic principle that all countries must afford U.N. human rights officials independent and meaningful access to all sites of detention, wherever they may be. It is notable that the United States can now, for the first time, credibly state that it has nothing to fear from such a visit. The Biden administration has strengthened the United States’ hand, and that of other democracies, vis-à-vis authoritarian regimes – like China – that have denied access to places of detention on purported security grounds.
From a policy perspective, Khan’s transfer is perhaps most significant, though, for demonstrating that well-negotiated plea deals are an effective strategy for ending the failed military commissions, and ultimately closing Guantanamo. But only if both parties follow through. Which brings us to the 9/11 case.
The Bad: The Biden Administration Dragging its Feet in 9/11 Case Plea Negotiations
Shortly before news of Ní Aoláin’s visit and Khan’s transfer broke, Carol Rosenberg and Charlie Savage at The New York Times reported that the White House has “steadfastly refused to weigh in” on plea negotiations that military commission prosecutors entered into last March with the men alleged to have planned and supported the 9/11 attacks. After several productive weeks of talks, prosecutors identified a set of policy questions they determined they did not have authority to resolve, and sent them up the chain. Those questions apparently involve inter-agency equities, and have been discussed among senior lawyers across the executive branch, but ultimately the White House has “le[ft] it to the Pentagon to decide how best to proceed.” Rosenberg and Savage describe the issue as “politically fraught” – in large measure because some victim family members, among others, still want to see the defendants tried and executed – and suggested those political dynamics are contributing to the almost year-long inertia.
Neither the process nor the substance of this decision should be so hard. First, while the White House’s approach is consistent with the hands-off role that presidents should take when it comes to decision-making in individual criminal proceedings, respecting that rule of law principle doesn’t require sitting idly by when the process stalls – for 11 months – because policy questions that require senior-level, inter-agency agreement haven’t been answered. The White House has plenty of tools at its disposal to encourage, and facilitate, just making the decisions, without weighing in on their substance. If that’s the only way to break the logjam and the White House won’t do it, there’s a real risk that negotiations could falter, in which case one might argue that the White House would have affected a possible plea deal, if indirectly, in the way it was seeking to avoid.
Second, legitimately frustrating as it might be, there is no alternative left to a plea deal in the 9/11 case, at least not if the goals are judicial finality and anything that resembles justice. A plea agreement would require the government to abandon the death penalty, but in practice the death penalty isn’t a realistic possibility. The case is now on its sixth judge (eight if one includes those who played only an administrative role, or had to recuse themselves); torture’s paralyzing impact on the proceedings isn’t going away; and some of the most basic legal questions remain unanswered – like does the Constitution’s Due Process Clause apply at Guantanamo? That is to say nothing of the case’s long history of government intrusions into the defense team. Put simply, there is nothing to suggest that the government will be able even to bring the case to trial, much less convict the defendants, then secure a death sentence that would survive on appeal in federal court.
This is why, as Leila Murphy recently wrote in Just Security, September 11th Families for Peaceful Tomorrows – an organization of family members of those killed on 9/11 – is among the stakeholders that support plea agreements. The plea process is their last best chance of getting answers to questions that they have been denied for two decades, including the most basic details of the accused’s alleged involvement in the attacks. (Jon Hafetz talks in more depth about the why and how of a potential plea here.)
So too does former Solicitor General Ted Olson, whose wife was aboard American Airlines flight 77 when it crashed into the Pentagon, and who subsequently coordinated 9/11-related litigation for the Bush administration. In a Wall Street Journal op-ed last week, Olson reflected that he now understands military commissions were “doomed from the start,” and that the 9/11 case should have been brought in federal court. But he also rightly explains why that’s no longer an option – not only because Congress has foreclosed bringing Guantanamo detainees to the United States, but also because attempting to start cases over from scratch in a new forum would not serve the interests of justice in any event. Even if Congress changed the law (which Members have made clear they will not do), “the only guarantee that federal court prosecution [would] bring is years of appeals resulting from the legal morass of the past two decades. This is no resolution.” Instead, Olson argues, “If the [defendants] are willing to plead guilty, and accept a life sentence at the military prison instead of the death penalty, we should accept that deal.”
If indeed this is Defense Secretary Lloyd Austin’s call to make, he should seize the opportunity. Austin didn’t choose military commissions, he was saddled with them. He now has the chance to succeed where none of his predecessors could; to secure a conviction, and salvage whatever justice is left to be had. There may be mixed reactions in the moment, but history will look kindly on the person who refused to pass the buck again, and instead brought this awful chapter to a responsible close.
The Ugly: Ammar al Baluchi Has a Spinal Tumor
On Jan. 27, Ammar al Baluchi – who has been held at Guantanamo since 2006, following three years of torture at a CIA black site in Afghanistan – filed a status report in his longstanding habeas case seeking a mixed medical commission (“MMC”), which is an independent medical evaluation, provided for in Army regulations that implement the Geneva Conventions (AR 190-8), to assess whether a detainee is entitled to medical repatriation. Al Baluchi’s counsel filed the report because their client, who already suffers from a traumatic brain injury caused by his torture, has now been diagnosed with a spinal tumor. (Prior his transfer, former Guantanamo detainee Mohammed Al Qahtani had sued in federal court for an MMC, and won. Then-Army Secretary Ryan McCarthy responded by improperly issuing a sweeping memorandum that purports to deny MMC’s by claiming that AR 190-8 “is not applicable to any [Guantánamo] detainee” at all, regardless of the nature of the detainee’s claim, and notwithstanding any court order to the contrary. The Biden administration has so far refused to rescind that memorandum.)
The process through which al Baluchi’s tumor was diagnosed and communicated is almost as alarming as the condition itself. According to his filing: “the Joint Medical Group labeled the 2021 [MRI] image as C-spine, even though it shows Petitioner’s lumbar spine. The 2022 image is labeled brain, when again, it is an image of the lumbar spine. And the metadata for the studies contain three different dates of birth for the Petitioner, none of which are accurate.”
In early January, Guantanamo’s senior medical officer showed al Baluchi his most recent MRI report, but refused to allow him to keep a copy. As of Jan. 27, his lawyers didn’t have the report either, because even such basic medical information is subject to Guantanamo’s often-protracted classification review process.
The news about al Baluchi comes in the midst of a COVID outbreak at Guantanamo, and on the heels of both Guled Duran’s emergency hospitalization and Nashwan al Tamir’s sixth back surgery – which, once again, required rushing a surgical team to Guantanamo at the 11th hour. Al Tamir is now wheelchair bound or requires a walker at all times.
Independent medical experts have been beating the drum for years that the medical care situation at Guantanamo is a ticking time bomb. Testifying in al Tamir’s military commission case last year, Guantanamo’s Chief Medical Officer conceded that that Guantanamo is wholly unprepared to manage an aging population with complex medical needs. There’s a lot that could be done to address the situation, but no administration has. At this point the answer is to get the men out as quickly as possible – through transfer agreements that provide for adequate medical care – and close Guantanamo.