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

16.1.21

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.

Bouffard and Shepard noted how the commissions have spectacularly failed to deliver justice, with only one of the limited number of convictions secured over the last 19 years — just eight in total — surviving intact a process of appeals and reversals. In addition, they highlight the scandal of “the five men accused of plotting the 9/11 attacks, who were first charged in 2008 but whose trial still has not begun,” largely because of the difficulties of retaining judges and officials overseeing the broken system, and, of course, the seemingly unresolvable tension between the defense teams’ insistence that no trial can be fair unless the men’s torture is openly discussed, and the prosecutors’ obsession with keeping it all secret.

I was reminded of a discussion I had last January, in Washington, D.C., with someone who had spent many years working on the commissions, in which the realization dawned on me that, after years in which the US obsessively insisted on not forgetting the 9/11 attacks, holding a national day of mourning every year, to fuel its ongoing sense of seemingly unquenchable vengeance, we are now in position where not only has justice failed to be delivered, but an entire generation of young Americans is growing up without even knowing what 9/11 was — in large part because the failure to convict any of the men responsible has rendered it invisible.

Significantly, Bouffard and Shepard also discussed the particular plight of the “forever prisoners,” those regarded as too dangerous to release, but who will never be charged. This was an unacceptable position when it was first put forward eleven years ago, in the report of the Guantánamo Review Task Force, a high-level government review process set up by President Obama, which recommended 156 prisoners for release, 36 for trial, and 48 as “forever prisoners.”

Parole-type reviews — the Periodic Review Boards — were set up for these men, and by the time they started, in 2013, some of the men initially recommended for prosecution had migrated to this group, so that 64 men were reviewed. The 25 “forever prisoners” are the only ones whose release was not recommended by the PRBs, and they include men regarded as a threat because of how they have behaved since they were brought to Guantánamo, rather than anything they allegedly did beforehand, apparent cases of mistaken identity or of exaggerated significance, as well as a number of men allegedly involved with terrorism, but without those allegations ever having been tested in a court of law.

Bouffard and Shepard represent one of these men — Mohammed Nazir Bin Lep, a Malaysian seized in Thailand in 2003, tortured in CIA “black sites,” and then dumped at Guantánamo in September 2006, along with other alleged “high-value detainees.” Bin Lep isn’t accused of being involved in any kind of attack on the US; instead, he is alleged to have transferred money for a terrorist group in south east Asia. And yet, as Bouffard and Shepard explain, “despite holding him for more than 17 years, at a cost of nearly a quarter-billion dollars, our government still refuses to bring Bin Lep to trial. At this point, key witnesses are dead, evidence is lost forever, and his chance to fairly defend himself has evaporated.”

As they ask pointedly towards the end of their article, “what’s the endgame for detainees who will never see trial? Do we hold them indefinitely, regardless of how flimsy their connection may be to attacks upon the United States?”

The answer, surely, has to be no. After 19 years, it is surely time for the men still held to be either charged or released — and I hope this is a position that is expressed to the Biden administration, as urgently as possible, after Joe Biden is inaugurated as president on Wednesday.

There’s no justice in Guantánamo Bay. For America’s sake, that must change.
By Brian Bouffard and Aaron Shepard, Washington Post, January 12, 2021

Just months after the tragic attacks on 9/11, the United States began transferring prisoners from detention centers and black sites around the world to a remote prison in Cuba. Nineteen years later, the detention center at Guantánamo Bay is still operating.

The original justification for the Military Commissions at Guantánamo was to bring accused terrorists to justice while simultaneously preserving national security. But in the two decades since 9/11, after accounting for all of the appeals and reversals by higher courts, the Commissions have produced only one final conviction.

Conversely, in that time, our civilian justice system has convicted nearly 700 individuals on terrorism-related charges. At this point, it should be abundantly clear that justice will never come at — or to — Guantánamo.

This clarity is perhaps best demonstrated in the case of the five men accused of plotting the 9/11 attacks, who were first charged in 2008 but whose trial still has not begun. Covid-19 bears some recent blame for this, but it’s certainly not responsible for the government repeatedly appointing new Commissions leadership; the intricacies of death penalty litigation and unreliable, torture-derived evidence; or the appointment of four new judges in the past eight months, with a fifth soon to come after the most recent one was disqualified.

But the deficiencies of the Military Commissions go deeper. Most nefarious is the effect on those imprisoned without trial, a violation of every norm and custom under our constitutional system.

We represent one of these men who has never had the chance to defend himself. Mohammed Nazir Bin Lep is a 44-year-old Malaysian who was arrested in Thailand in 2003. Our government severely tortured him for three years and then shut him away in Guantánamo. He wasn’t involved in any attack on the United States; instead, he was allegedly affiliated with a Southeast Asian group that committed attacks in Indonesia. Though no one alleges that he planned, carried out or even knew anything about these attacks, he was charged with allegedly transferring money that the government believes — but hasn’t proved — helped fund those attacks.

Yet despite holding him for more than 17 years, at a cost of nearly a quarter-billion dollars, our government still refuses to bring Bin Lep to trial. At this point, key witnesses are dead, evidence is lost forever, and his chance to fairly defend himself has evaporated. The government has denied access to his medical records, and has yet to grant him a legally required evaluation for the mental and physical damage caused by torture. Furthermore, while the government decided to prosecute him at least 10 years ago, Bin Lep was denied legal assistance for a trial until 2019. If not for the evenhanded intervention of a federal judge, this misbegotten legal process would have degenerated even further.

We expect many Americans won’t raise an eyebrow at this or might think the details are mere legal technicalities. But Guantánamo exists in a shadowy legal gray zone, and only sunlight can illuminate the questions it raises about our fundamental values and commitment to the rule of law. For instance, what’s the endgame for detainees who will never see trial? Do we hold them indefinitely, regardless of how flimsy their connection may be to attacks upon the United States? And if the government creates laws and processes aimed at fairness, does it actually have to follow them, or can it simply ignore them when it’s convenient?

These questions demand answers, which is why we filed a petition asking a federal judge to answer them. Were this a normal case within our civilian justice system, our petition wouldn’t be necessary, because Bin Lep’s treatment is a clear violation of the Sixth Amendment [the right to a public trial without unnecessary delay]. But even though the government has withheld basic constitutional and human rights protections from Bin Lep and his fellow prisoners, this has not accelerated the pace of justice. Decades later, victims and their families are no nearer to closure, the system faces rightful condemnation at home and abroad, and American taxpayers are still footing a bill of more than $500 million per year. Pragmatic concerns aside, what moral high ground have we surrendered by allowing the Commissions to bypass our principles? What does it say about us when we conjure excuse after excuse to ignore our values?

Some may find it difficult to care about the men in Guantánamo. But as Supreme Court Justice Felix Frankfurter wrote in 1950, “The safeguards of liberty have frequently been forged in controversies involving not very nice people.” These safeguards against government overreach and abuse are critically important for all of us — the “nice” and the “not very nice” alike. And unless there’s a fundamental shift in our failed approach to justice at Guantánamo, all of our profitless moral compromising will amount to nothing but the loss of our national soul.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from eight years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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4 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, a cross-post, with my own introduction, of a powerful op-ed in the Washington Post by Brian Bouffard and Aaron Shepard, attorneys who represent “forever prisoner” Mohammed bin Lep, an alleged “high-value detainee” who was held in CIA torture prisons for three years, prior to his arrival at Guantanamo in September 2006.

    Bouffard and Shepard explain how the military commission system is broken, with reference to its history of failed convictions and its inability to try the five men allegedly responsible for the 9/11 attacks, despite them first being charged 13 years ago.

    With reference to Mohammed bin Lep, they also ask how the US government supposedly justifies holding some prisoners indefinitely without charge or trial because of “flimsy” and untested allegations that purport to prove that they pose a threat to the US.

    There are 25 of these “forever prisoners,” out of the 40 men still held, and as I explain in response to their question, “After 19 years, it is surely time for the men still held to be either charged or released — and I hope this is a position that is expressed to the Biden administration, as urgently as possible, after Joe Biden is inaugurated as president on Wednesday.”

  2. 1. US Security from Michael_Novakhov (88 sites): Eurasia Review: Gen. Austin, Biden’s Defense Secretary, Says It’s ‘Time For Guantánamo To Close Its Doors’ – OpEd | Global Security News- globalsecuritynews.org says...

    […] “high-value detainees” — Encep Nurjaman, an Indonesian known as Hambali, and two Malaysians, Mohammed Nazir bin Lep and Mohammed Farik bin Amin — “who have been in US custody for 17 years for their alleged […]

  3. 1. US Security from Michael_Novakhov (88 sites): Eurasia Review: Gen. Austin, Biden’s Defense Secretary, Says It’s ‘Time For Guantánamo To Close Its Doors’ – OpEd | The News And Times Information Network - newsandtimes.net says...

    […] “high-value detainees” — Encep Nurjaman, an Indonesian known as Hambali, and two Malaysians, Mohammed Nazir bin Lep and Mohammed Farik bin Amin — “who have been in US custody for 17 years for their alleged […]

  4. Andy Worthington says...

    For a Spanish version on the World Can’t Wait’s Spanish website, see ‘Cierren Guantánamo: Abogados denuncian sistema roto de Comisiones Militares y status de “prisioneros siempre” en opinión del Washington Post’: http://worldcantwait-la.com/worthington-cierren-guantanamo-abogados-denuncian-sistema-roto-de-cm.htm

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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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