How the Law Failed at Guantánamo

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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.

Separately, the CIA had been empowered to muddy the waters still further by holding suspected “high-value” prisoners in “black sites,” secret prisons foisted on compliant regimes around the world, where they were subjected to torture programs that, in defiance of international and domestic law, had been approved by lawyers working in the Justice Department’s Office of Legal Counsel (OLC), the legal body charged with providing objective legal opinions to the executive branch. A third Supreme Court ruling in June 2006, Hamdan v. Rumsfeld, overturned the military commissions as unlawful, while also reminding the Bush administration that Common Article 3 of the Geneva Conventions — prohibiting the use of torture and “cruel, humiliating and degrading treatment” — applied to all prisoners under US control. The “black sites” subsequently closed, and 14 “high value detainees” were brought to Guantánamo, where a revived version of the commissions, approved by Congress, was supposed to provide a fairer forum for their subsequent prosecutions.

The Supreme Court’s fourth and — to date — final ruling regarding Guantánamo came in June 2008, in Boumediene v. Bush, as a result of Congress responding to Rasul v. Bush, four years earlier, by passing legislation designed to prevent the prisoners from exercising their habeas rights. The Court ruled that Congress had acted unconstitutionally, and granted the prisoners constitutionally guaranteed habeas corpus rights.

Fast forward to 2021, and, sadly, Guantánamo largely remains a lawless place. Boumediene v. Bush led to a two-year period in which judges were able to objectively review the government’s purported evidence against the prisoners, deciding, in 38 cases, that the government had failed to demonstrate, even with a low evidentiary standard, that the men in question had any meaningful connection to either al-Qaeda or the Taliban, and ordering their release. Shamefully, politically motivated appeals court judges subsequently changed the rules, overturning six of those decisions, and eventually shutting down habeas corpus for the prisoners by ordering judges to regard all the government’s evidence — however risible — as presumptively accurate, and in the years since the Supreme Court has turned down numerous opportunities to take back control.

As for the military commissions, 12 prisoners have been through the process — two via trials, and six via plea deals — although many of these were overturned on appeal, on the predicted basis that Congress had invented the war crimes for which they were convicted. Meanwhile, the “high-value” trials — including those of five men accused of involvement in the 9/11 attacks — are mired in seemingly endless pre-trial hearings, as the government tries to suppress all mention of the torture to which the men were subjected, while the defense teams insist that exposing that torture is the only way that anything resembling fair trials can proceed.

These are my thoughts nineteen and a half years since the opening of the prison at Guantánamo Bay, and they were meant to provide an introduction to an important article that was recently published in the Atlantic, written by Benjamin Farley, an attorney with the defense team for Ammar al Baluchi, one of the five men accused of involvement in the 9/11 attacks. Farley’s article is entitled, “The Fairy Tale America Likes to Tell Itself,” and I’m cross-posting it below, because it provides a powerful insider account of how the law has failed at Guantánamo, and, importantly, what President Biden can do about it, if he is sincere in his desire to see Guantánamo closed.

I hope you have time to read Farley’s article in its entirety, as it reaches places and provides details that my own efforts cannot accomplish, and I hope that President Biden will listen to his conclusions about what now needs to be done to restore the rule of law. Firstly, he urges the closure of Guantánamo, and the immediate release of the 28 men still held , out of 40 in total, who have not been charged. Secondly, he calls for plea deals to be negotiated for the ten men currently facing trials. Thirdly, he calls for the full Senate Select Committee on Intelligence’s report on rendition and interrogation (the CIA torture report) to be released, and, fourthly, and innovatively, he calls on the Biden administration to avoid any possible reprise of the calamitous mistakes of the last two decades by “conven[ing] an international conference that aims to articulate the laws of war applicable to non-international armed conflicts.”

The Fairy Tale America Likes to Tell Itself
By Benjamin R. Farley, The Atlantic, June 29, 2021

The country believes that its policies are like a pendulum, swinging back and forth over a moderate middle ground. But since 9/11, that pendulum has been stuck.

Many Americans like to tell themselves a story about the choices the country makes in times of national crisis. We see our country’s policies as a pendulum. We may overreact at first, temporarily sacrificing principles and rights to meet the emergency at hand. But eventually the crisis recedes, and in restoring our commitment to foundational principles and the rule of law, we push the pendulum back toward equilibrium.

This story is comforting; it makes sense of America’s reactions to crises throughout the country’s history. Indeed, I’ve repeatedly used this story to explain America’s post-9/11 policies even as I’ve played a small part in it. From 2013 to 2017, I was an adviser to the special envoy in the State Department’s Guantánamo-closure office. Since 2017, I have served as an attorney in the Department of Defense’s Military Commissions Defense Organization, on the team that represents Ammar al Baluchi— one of the men at Guantánamo facing the death penalty before the 9/11 military commission. But what I write here represents my own views, and not those of the Department of Defense. Unfortunately, the story I have told of post-9/11 overreaction and excess rectified by American institutions looks more and more like a fairy tale —albeit one that the Biden administration might yet redeem as truth.

Our pendulum swung in the aftermath of one of the most devastating terrorist acts in history, when then-President George W. Bush adopted a set of extraordinary policies inextricably linked with the detention facility at Guantánamo Bay, Cuba. Those post-9/11 policies constituted a significant departure from American law and values. Bush authorized the CIA to kidnap and detain individuals believed to be linked to al-Qaeda at secret dungeons around the world. At those locations — “black sites” — the United States imprisoned men incommunicado and practiced torture in violation of both a universal prohibition and America’s own vocal repudiation of the tactic. So-called enhanced interrogation included, among other abhorrent tactics, hooding, forced nudity, hallucination-inducing sleep deprivation, and concussion-inducing beatings, as well as war crimes that the United States had previously prosecuted, such as waterboarding. In some cases, U.S. personnel treated men such as my client as “training props,” tormenting them without even trying to gather intelligence. At least 26 of the 119 men who the United States has acknowledged were imprisoned as part of its so-called Rendition, Detention, and Interrogation program should not have been, according to the program’s own standards. One black site was even co-located with the offshore prison camp Bush established at Guantánamo Bay, where nearly 800 men have been detained — supposedly under the laws of war but largely without the protections that body of law provides.

Almost five years into the “Global War on Terror,” the pendulum appeared set to swing back to equilibrium when the Supreme Court handed down Hamdan v. Rumsfeld. That decision rejected the Bush administration’s extreme interpretation of the laws of war — which regulate the conduct of warfare, including the treatment of captured enemies, and endeavor to make it more humane — and promised a return to long-professed American principles and the rule of law. Yet, in the 15 years since, Congress, the executive branch, and federal courts have neutered that decision and arrested the pendulum’s course. Today, 40 aging and infirm men — many of whom were victims of American torture or cruel, inhuman, and degrading treatment —remain in U.S. custody at Guantánamo Bay in a detention regime that conforms little better to the laws of war now than it did in 2006.

From the outset, the United States has asserted that the laws of war authorize the imprisonment of men at Guantánamo for the duration of its war with al-Qaeda. The Bush administration implausibly concluded that the novelty of that war exempted it from applying law-of-war protections, particularly the Geneva Conventions, to the detention that it claimed the war justified. Contrary to the laws of war, the Bush administration transported detainees to a location far removed from its battlefield with al-Qaeda. It refused to treat those men as prisoners of war and failed to convene tribunals to determine their appropriate status under the law. It refused to apply Common Article 3, which would have barred the torture of America’s detainees, as well as their cruel or inhuman treatment. It tortured at least two detainees in military (as opposed to CIA) custody at Guantánamo. And it purported to establish military commissions — traditional American law-of-war tribunals — that not only lacked meaningful fair-trial guarantees but failed to adhere to necessary requirements of the Uniform Code of Military Justice. Notwithstanding these deviations from law and principle, the United States was untroubled by its unusual detention regime at Guantánamo because it reasoned that its activities there were beyond the reach of the Constitution and American courts. Indeed, a Bush-administration official described Guantánamo as the legal equivalent of outer space because of Cuba’s theoretical, residual sovereignty over the United States’ de facto perpetual leasehold there.

Then, on June 29, 2006, the Supreme Court decided Hamdan, leading many legal onlookers to think that the pendulum might finally be pushed back by the imposition of law and judicial oversight on what was happening in Guantánamo. In Hamdan, the second of three major Guantánamo cases decided from 2004 to 2008, the Supreme Court ruled that President Bush had overstepped his authority in ordering military tribunals for Guantánamo detainees that deviated radically from the Geneva Conventions and the UCMJ. Hamdan appeared to dictate that the detention regime at Guantánamo would thereafter conform to the laws of war. Torture and cruel, inhuman, and degrading treatment would be prohibited. Justice could be meted out only by regularly constituted tribunals that satisfied internationally recognized fair-trial guarantees. And, with the Court’s seminal Boumediene v. Bush decision in 2008, Guantánamo detainees were guaranteed the ability to seek judicial review in U.S. federal courts of both the legality and the conditions of their detention at Guantánamo, seemingly enshrining the law of war’s force there.

Unfortunately, in the 15 years following Hamdan, the promise of that decision — and that of Boumediene — has proved, like a fairy tale, too good to be true. Just two months after the Court handed down Hamdan, the United States transferred 14 victims of its torture program to Guantánamo. Although these men were now supposedly in military custody, the CIA retained operational control over them. Although they were now ostensibly law-of-war detainees, they continued to be deprived of meaningful access to their families. Although they were transferred to Guantánamo expressly to face (fair) trial by military commission — and although the Supreme Court had already guaranteed their access to legal representation — the United States continued to prevent them from meeting or speaking with attorneys for at least a year. And, although any fair trial necessarily precludes the use of torture-derived evidence, the United States continued to rely on the proceeds of torture by using FBI agents who had been intimately involved in the torture program to gather supposedly “clean” evidence for use at trial. In fact, the fruits of those torture-tainted interrogations remain the basis of U.S. prosecutions at Guantánamo that limp along to this day. One military judge has even authorized the prosecution to use, in pre-trial proceedings, statements extracted by torture at black sites, as if those statements were ordinary hearsay.

In the years since Boumediene, aggressive litigation positions advanced by the United States in Guantánamo habeas corpus proceedings, combined with a deferential federal appellate court, made judicial review of detention little more than a dead letter. The D.C. Circuit established a standard of wartime detention so expansive that it embraces not only men who fought the United States but some who never bore arms against the U.S. and even men whom al-Qaeda rejected. It is a standard so broad that the United States appears to believe it countenances the ongoing detention of a member of Hezb-e-Islami Gulbuddin, a group that capitulated to the U.S. five years ago and subsequently became an American ally.

During this same period, Congress wrote much of the law of war out of law-of-war detention at Guantánamo Bay. Through the 2006 Military Commissions Act and the 2009 Military Commissions Act, Congress barred the men detained at Guantánamo from relying on the Geneva Conventions to set the parameters of their detention. Congress also amended the War Crimes Act to insulate U.S. personnel from liability for violations of the laws of war, including outrages upon personal dignity and breaches of due-process protections.

For its part, despite repeatedly claiming that detention at Guantánamo is “informed by the principles of the laws of war,” the executive branch — across the Bush, Obama, and Trump administrations — emasculated the regulatory power of those laws by cherry-picking its authorities while discarding its obligations at Guantánamo. For example, the United States confused distinct legal categories and disparate legal regimes, asserting that its Guantánamo prisoners are detainable for the duration of its war with al-Qaeda, as if they were soldiers under the Third Geneva Convention, even as it established a detention review process that looks like the one applicable to civilians under the Fourth Geneva Convention. Yet, in doing so, the United States failed to adhere even to the partly U.S.-authored Copenhagen Principles by insisting that such review is discretionary and prohibiting it from reconsidering the underlying detainability of U.S. prisoners. Worse, the United States’ years-long, continued detention of men whom it no longer believes it must imprison is inconsistent with the foundational law-of-war principle of military necessity that approves detention as a battlefield expedient in the first place.

Similarly, the executive branch refuses to apply fundamental, humanitarian law-of-war principles at Guantánamo. As recently as January 11 of this year, in an effort to evade a federal court order, the executive branch claimed to retroactively exempt Guantánamo alone from U.S. detention regulations that would otherwise require a mixed medical commission to determine whether a victim of American torture is so ill that he must be released. Exacerbating that failing, the United States likewise refuses to provide its Guantánamo detainees with access to health care equal to the care available to the men and women who guard them, embracing a perverse justification for this deprivation: Guantánamo, it says, is more like the remote battlefields on the other side of the world than a peaceful base fewer than 500 miles off the coast of Florida. That policy has likely already resulted in the permanent debilitation of at least one prisoner.

Nevertheless, on this anniversary of Hamdan, a new administration imbued with the lessons of the Obama years provides reason — if ever so slight — to hope that America will resurrect its values and restore our pendulum’s equilibrium. Although much of the damage wrought by the United States’ post-9/11 excesses cannot be undone — those tortured cannot be untortured; those debilitated cannot be healed — it can be mitigated in a way that helps restore America’s global leadership. That mitigation requires the United States to take four steps that would, in President Joe Biden’s words, restore America’s commitment to “upholding universal rights, respecting the rule of law, and treating every person with dignity.” Together, these steps would save our story from its fate as a fairy tale.

First, the Biden administration must finally close the detention facility at Guantánamo Bay in order to end its aberrant experiment there. President Biden and senior members of his administration have already committed to doing just that. The president should appoint a senior administration official to quickly and responsibly repatriate or resettle the 28 Guantánamo detainees who are neither being prosecuted before nor awaiting sentencing by military commissions. In transferring those detainees, the Biden administration should acknowledge the victims of American torture and ensure that, upon their release from U.S. custody, those victims receive at least appropriate medical care for their complex injuries.

Second, the Biden administration should demonstrate its commitment to the rule of law by immediately entering into plea negotiations to resolve the cases of the 10 men with pending Guantánamo military-commission trials. Such negotiations almost certainly mean that the United States will not, ultimately, execute the alleged perpetrators of the 9/11 and other terrorist acts. But that is both appropriate and proportionate. Neither the United States nor any other government should be allowed to execute victims of its own torture — and it certainly should not be allowed to do so on the basis of evidence derived from that torture. Disallowing the death penalty for victims of torture will meaningfully deter future U.S. leaders who are enticed by a crisis to discard American law and values to address that crisis. Plea agreements also offer the quickest path to achieving a modicum of justice for the United States, the American people, and the victims of terrorism by finally assigning individual responsibility for terror, an outcome long denied by the interminable, broken military commissions.

Third, the Biden administration should declassify the full Senate Select Committee on Intelligence’s report on rendition and interrogation. It should also make the complete, unredacted version of that report available to the attorneys who possess requisite security clearances and represent Guantánamo detainees on trial before military commissions. Those attorneys require access to the full report in order to adequately serve their clients, and access to it will ensure that those clients receive sentences that correctly reflect both the scale of their crimes and the wanton, illegal brutality they suffered. Anything less would serve only to extend the United States’ decades-long denial of a fair trial for alleged criminals who are also victims of American torture.

Finally, to restore America’s historical, global law-of-war leadership, the Biden administration should convene an international conference that aims to articulate the laws of war applicable to non-international armed conflicts. This conference would fill the gaps in regulation of armed conflicts such as the U.S. war with al-Qaeda. It would demonstrate America’s recommitment to the rule of law by establishing a legal framework that clearly defines the rights, duties, and obligations of participants in those conflicts. In so doing, it would restrain parties to future such conflicts, limiting their ability to engage in the law avoidance that marked much of America’s post-9/11 excess.

If taken, these steps would help mitigate, and meaningfully impede the recurrence of, the harms inflicted since the 9/11 attacks. These steps would also restore our standing in the international community as a country committed to universal values and the rule of law. And they would, at long last, vindicate our pendular story.

Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization, where he represents Ammar al Baluchi, one of the five men facing the death penalty before the 9/11 military commission at Guantánamo Bay.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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).

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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