On the 20th Anniversary of the 9/11 Attacks, the US Needs to Close Guantánamo and Bring to an End the Broken Military Commission Trials

The 9/11 attacks and Camp 6 at Guantánamo, photographed in 2016.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On the 20th anniversary of the terrorist attacks of September 11, 2001, the United States’ response to those attacks, both militarily and in terms of the law, couldn’t, in all honesty, have ended up more broken, unjust and embarrassing.

Having invaded Afghanistan a month after the attacks, the last US troops withdrew last month, effectively conceding defeat to the Taliban, whose overthrow had been one of the two justifications for the invasion, the other being the destruction of Al-Qaeda, the organization allegedly responsible for the attacks.

In fact, the Taliban were quite swiftly defeated after the US-led invasion, but, instead of withdrawing, US forces stayed on, blundering around the country, largely unable to identify allies from enemies, and definitively losing “heart and minds” through repeated bombing raids, often based on poor intelligence, that killed an enormous number of Afghan civilians, and through imprisoning many thousands of Afghans in lawless and often brutal conditions at Bagram and Guantánamo.

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How the Law Failed at Guantánamo

The isolated prison cells of Camp 5 at Guantánamo, where the “high value detainees,” brought to the prison from CIA “black sites” in September 2006, were recently transferred, after their previous cell block, Camp 7, was judged to be unfit for purpose.

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Just five days ago, on July 11, the prison at Guantánamo Bay marked another sad and unjustifiable milestone in its long history — nineteen and a half years since it first opened on January 11, 2002.

From the beginning, Guantánamo was a project of executive overreach — of the US government, under George W. Bush, deciding, after the 9/11 attacks, that the normal rules governing the imprisonment of combatants during wartime should be swept aside. The men who arrived at Guantánamo were deprived of the protections of the Geneva Conventions, and were designated as “unlawful enemy combatants,” who, the Bush administration claimed, could be held indefinitely. For those who were to be charged with crimes, the Bush administration revived the military commission trial system, last used for German saboteurs in the Second World War, deciding that acts of terrorism — and even some actions that were a normal part of war, such as engaging in firefights — were war crimes. The result was that soldiers came to be regarded as terrorists, and alleged terrorists came to be regarded as warriors, with the former denied all notions of justice, and the latter provided only with a legal forum that was intended to lead to their execution after cursory trials.

The mess that ensued has still not been adequately addressed. Nearly two and a half years after Guantánamo opened, the Supreme Court took the unusual step of granting habeas corpus rights to wartime prisoners, having recognized that the men held had no way whatsoever to challenge the basis of their imprisonment if, as many of them claimed, they had been seized by mistake. That ruling, Rasul v. Bush, allowed lawyers into the prison, to begin preparing habeas corpus cases, but on the same day, in another ruling, Hamdi v. Rumsfeld, the Supreme Court essentially approved Guantánamo as the venue for the exercise of a parallel version of the wartime detention policies of the Geneva Conventions, ruling that prisoners could be held until the end of hostilities — an unwise move, given that the Bush administration regarded its “war on terror” as a global war that ignored geographical context, and could last for generations.

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Former Military Commissions Prosecutor Calls for the Closure of Guantánamo

Former Guantánamo military commissions prosecutor Omar Ashmawy, and a court sketch of Salim Hamdan, at his trial in 2008, one of only two military commission cases that have proceeded to full trials since Guantánamo was first established 19 and a half years ago.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Since Joe Biden was inaugurated as president in January, there has been a considerable outpouring of high-level demands for the closure of the shameful and disgraceful prison at Guantánamo Bay, which marked the 19th anniversary of its opening just before Biden’s inauguration, as the fatigue of the Trump years, when the White House was occupied by a president with no interest in addressing the horrors of Guantánamo, came to an end.

In January, seven former prisoners (all authors) had a letter published in the New York Review of Books calling for the prison’s closure, followed in February by a letter from 111 human rights organizations, including Close Guantánamo. Most significantly, in April, 24 Democratic Senators, including Dick Durbin, Patrick Leahy and Dianne Feinstein, followed up with their own demand for the prison’s closure, including detailed explanations of how that is possible.

There have also been op-eds by former Bill Clinton advisor Anthony Lake and Close Guantánamo co-founder Tom Wilner, by Lee Wolosky, the former Special Envoy for Guantánamo Closure, by retired Rear Admirals Donald J. Guter and John Hutson, by former CIA analyst Gail Helt, by Valerie Lucznikowska of September 11 Families for Peaceful Tomorrows, and by the attorney Benjamin R. Farley, who represents one of the men accused of involvement in the 9/11 attacks, as part of the DoD’s Military Commissions Defense Organization.

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Biden’s Slow Progress on Closing Guantánamo

A composite image of President Biden and a tattered US flag at Guantánamo.

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An article last week by NBC News — “Biden quietly moves to start closing Guantánamo ahead of 20th anniversary of 9/11” — was widely shared by opponents of the continued existence of the shameful prison at Guantánamo Bay, but frustratingly failed to live up to the promise of its headline.

40 men are still held at Guantánamo, and nine of these men have been approved for release by high-level US government review processes — three in 2010, two in 2016, one in 2020, and three just last month, in decisions taken by the Periodic Review Boards set up under President Obama that show a willingness on the part of the Biden administration to recognize that there is something fundamentally wrong with a system that continues to hold, indefinitely, men who have been held for up to 19 years, and have never been charged with a crime.

The PRBs reviewed the cases of 64 men under Obama, and approved 38 of them for release, but since then the process of reviewing the other 26 men has largely ossified into rigid threat assessments based on the initial decisions taken under Obama. That has finally changed with the recent decisions to approve three men for release, and it is to be hoped that further recommendations for release will be forthcoming in the PRBs, although none of this will mean anything if these men are not actually freed.

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Seven Authors, All Former Guantánamo Prisoners, Urge President Biden to Close the Prison Before its 20th Anniversary

The books of the seven authors and former Guantánamo prisoners who have just written an open letter to President Biden, urging him to close the prison, which was published in the New York Review of Books.

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As the Biden administration settles in, and we await news of its plans for Guantánamo — after defense secretary Gen. Lloyd Austin told the Senate during his confirmation hearing, “I believe it is time for the detention facility at Guantánamo to close its doors” — it’s good to see the need for Guantánamo to be closed being discussed in the New York Review of Books by seven former prisoners who have all written books about their experiences.

The seven authors are Mansoor Adayfi, whose memoir Don’t Forget Us Here: Lost and Found at Guantanamo is being published this August, Moazzam Begg (Enemy Combatant, 2006), Lakhdar Boumediene (Witnesses of the Unseen: Seven Years in Guantanamo, 2017), Sami Al Hajj (Prisoner 345: My Six Years in Guantánamo, 2018), Ahmed Errachidi (The General: The Ordinary Man Who Challenged Guantánamo, 2013), Mohamedou Ould Slahi (Guantánamo Diary, 2015) and Moussa Zemmouri (Onschuldig in Guantánamo, 2010).

I’ve read all of the above — with the exceptions of Moussa Zemmouri’s book, which hasn’t been translated into English, and Mansoor Adayfi’s, which hasn’t been published yet  — and what I know from all of them is how eloquent the authors are, and how keenly they experienced and articulated the injustices of Guantánamo.

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Gen. Lloyd Austin, Biden’s Defense Secretary, Says it’s “Time for Guantánamo to Close its Doors,” as DoD Announces New Military Commission Charges

Gen. Lloyd Austin at his Senate confirmation hearing as defense secretary in President Biden’s administration, Jan. 19, 2021, and a photo of Camp 6 at Guantánamo.

 

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In a flurry of activity on his first day in office, President Biden issued 17 executive orders, undoing some of the worst policy disasters of his predecessor, Donald Trump — including rejoining the Paris climate accord, stopping the US’s withdrawal from the World Health Organization, reversing Trump’s Muslim travel ban, and canceling the much-criticized Keystone XL pipeline.

Yesterday, in what the Guardian described as “a sweeping new set of climate executive orders,” he instructed the US government “to pause and review all oil and gas drilling on federal land, eliminate fossil fuel subsidies and transform the government’s vast fleet of cars and trucks into electric vehicles.”

Missing in all this commendable activity, sadly, is anything relating to the prison at Guantánamo Bay. As Vice President, Joe Biden was with President Obama 12 years ago, on January 22, 2009, when he issued Executive Order 13492, promising to close Guantánamo, which was undone by Trump in Executive Order 13823 — the absurdly-named “Protecting America Through Lawful Detention of Terrorists” — on January 30, 2018.

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Close Guantánamo: Lawyers Decry Broken Military Commission System and Status of “Forever Prisoners” in Washington Post Op-Ed

Campaigners calling for the closure of the prison at Guantánamo Bay outside the US Congress on Monday January 11, 2021, the 19th anniversary of the opening of the prison. (Photo by Alli Jarrar of Amnesty International).

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As the 19th anniversary of the the opening of the prison at Guantánamo Bay recedes, and the inauguration of Joe Biden hoves into view, it remains crucial that all of us who oppose the continued existence of Guantánamo continue to discuss the 40 men still held there, the inadequacy of the status of all of them (six approved for release but still held, nine charged or tried in a broken trial system, and 25 consigned to oblivion as “forever prisoners”), and to demand its closure.

On the anniversary, along with the various online events and interviews, Newsweek distinguished itself by being the only mainstream US media outlet to focus on the anniversary, publishing a powerful op-ed by former prisoner, torture victim and best-selling author Mohamedou Ould Salahi, which I posted the day after on the Close Guantánamo website.

The only other mainstream media coverage I’ve found came the day after the anniversary in the Washington Post, where two attorneys with the Military Commissions Defense Organization, civilian defense counsel Brian Bouffard, and Aaron Shepard, a lieutenant commander in the US Navy JAG Corps, wrote what really ought to be an epitaph for Guantánamo’s broken military commission trial system, and for the rotten policy of indefinite detention without charge or trial that is the main hallmark of Guantánamo’s unforgivable exceptionalism, as the prison begins its 20th year of operations. The op-ed is cross-posted below.

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Joe Biden’s Guantánamo: New York Times Highlights Decaying Prison Cells and Broken Judicial System; Observer Notes Return of Hope

A composite image of President-elect Joe Biden and the prison at Guantánamo Bay.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the guessing game that is the incoming Biden administration’s policy regarding the moral stain on the US that is the “war on terror” prison at Guantánamo Bay, which will mark the 19th anniversary of its opening just two weeks’ time, three New York Times reporters — Carol Rosenberg, Charlie Savage and Eric Schmitt — recently highlighted some of the issues that Joe Biden will have to address when he take office, in an article entitled, “‘In Bad Shape and Getting Worse,’ Guantánamo Poses Headaches for Biden.”

The Times largely sidestepped the glaring injustice of the entire facility — where 40 men are still held, for the most part, in open-ended indefinite detention without charge or trial, in defiance of domestic and international norms regarding imprisonment — focusing instead on the prison’s “decaying infrastructure” and its broken judicial system, the military commissions.

On the bigger picture, the reporters noted only that Biden “has yet to lay out plans for Guantánamo,” but that, “according to people familiar with transition deliberations,” his administration “is not expected to repeat President Barack Obama’s splashy but ultimately unmet promise in 2009 to close the prison within a year.”

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A Guantánamo Insider’s Detailed Proposal for How Joe Biden Can Finally Close the Prison

A composite image of President Elect Joe Biden and Camp 6 at Guantánamo.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

With Joe Biden’s victory in the Presidential Election, it’s reassuring that Guantánamo is back on the radar, after four long years under Donald Trump in which time may as well have stood still.

The Just Security website has just published a powerful article, “A Path for Renewing Guantánamo Closure,” which we’re cross-posting below. It was written by Benjamin R. Farley, who served as Senior Adviser to the Special Envoy for Guantánamo Closure at the U.S. Department of State from 2013-17, and is currently a Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization, assigned to the team representing Ammar al-Baluchi, one of the five co-defendants in the 9/11 trial.

Farley explains how, of the 40 men still held, 30 can be released “simply by restoring, with slight modification, the successful GTMO closure policy process developed during the Obama administration,” although he concedes that, “[t]o finish the remaining 25 percent of the project, [he] will likely need the historically elusive support of Congress.”

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Military Judge Rules That Terrorism Sentence at Guantánamo Can Be Reduced Because of CIA Torture

Guantánamo prisoner Majid Khan, in a photo taken at the prison in 2018, and the military commissions judge, Army Col. Douglas K. Watkins, who has ruled that his sentence, based on a plea deal agreed in 2012, can be reduced because he was tortured in “black sites” by the CIA.

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

It’s been nearly two years since I last reported on the military commission trial system at Guantánamo, which is less an oversight than a tacit acknowledgement that the entire system is broken, a facsimile of justice in which the defense teams for those put forward for trials are committed to exposing the torture to which their clients were subjected in secret CIA “black sites,” while the prosecutors are just as committed to keeping that information hidden.

I’m pleased to be discussing the commissions again, however, because, in a recent ruling in the case of “high-value detainee” Majid Khan, a judge ruled that, as Carol Rosenberg described it for the New York Times, “war court judges have the power to reduce the prison sentence of a Qaeda operative at Guantánamo Bay, Cuba, as a remedy for torture by the CIA.”

When I last visited the commissions, the chief judge, Army Col. James L. Pohl, who had also been the judge on the case of the five men accused of involvement in the 9/11 attacks since the men were arraigned in May 2012, had just caused a stir by ruling that confessions obtained by so-called “clean teams” of FBI agents, after the men were moved to Guantánamo from the CIA “black sites” where their initial confessions were obtained through the use of torture, would not be admitted as evidence. In a second blow, he announced his resignation.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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