Guantanamo: A former prosecutor’s solution to an ‘unsolvable problem’

The Biden administration is determined to close Guantanamo bay. However, it remains to be clarified how.

Twenty years after the 9/11 attacks, military commission proceedings for the plotters are still in the pretrial phase. The earliest estimate for a 9/11 trial to begin is 2024.

Why This

Was Written

There is no easy way to close Guantanamo bay. One former prosecutor believes that political courage could be key to justice in this instance.

Some blame the ineffectiveness of military courts. In the last two decades, only eight convictions were obtained. Half of these cases were overturned. Federal courts, by contrast, have secured more than 660 terrorism convictions since 9/11. For example, the Benghazi attack trials were held in federal courts with all parties pleading guilty.

Some blame the unjust military courts. Omar Ashmawy is an Air Force officer and a former Guantanamo prosecutor.

He says that even if there were a worse-case scenario, it is worth suspending military commissions to try the cases at federal court. “Maybe they are all acquitted. He suggests that they might return to combat. They should not be tried if they are unable to provide the same protection to themselves and their own citizens. They should be released.”

“Indefinite confinement, without any meaningful rights, is simply too damaging to the soul of the U.S.,” he concludes.

When Omar Ashmawy, then a United States Air Force officer, volunteered for the job of prosecuting Guantanamo Bay detainees in 2007, he had high hopes for America’s prospects of dispensing justice.

” “I believe in the notion that military tribunals have historically been a means for nation-states of resolving crimes against humanity. And I think terrorism very much qualifies under this definition,” he said.

The Supreme Court recently decided that Bush’s procedure for trying terrorist suspects indicted them of violating their rights, as well as those under the Geneva Conventions. This included preventing defendants from seeing the evidence against them. He thought that this was a positive development.

Why This

Was Written

There is no easy way to close Guantanamo bay. One former prosecutor believes that political courage could be key to justice in this instance.

At that time, a person he respected was also the Defense Department’s chief procuror. “If this individual was willing and able to support the process, then it was something that I could do .”

But, just weeks after Ashmawy returned for duty, the same person resigned, claiming that he didn’t believe fair trials were possible.

” “I think that if there were any moment that really drove home my concerns it was that one. But it was only the beginning,” he said. It was an incremental, slow revelation that you could not trust the system the further you looked behind the curtain. I went in thinking I could do good.” As time went on, he concluded that he was “more or less assisting a system that was not geared towards doing what it was arguably set up to do.”

Public statements of disillusionment like Mr. Ashmawy’s have long been a catalyst in demands to shut down the detention center, which critics argue is an ugly stain on the democratic ideals of the United States – particularly when coupled with the documented torture of those held there. The Biden administration is seeking to close the prison. In advance of January’s confirmation hearings, Defense Secretary Lloyd Austin stated that he believed the prison should be shut down and that he would direct his staff to “direct my personnel to work with other officials in order to find a way forward for those remaining detainees.”

Despite there being no obvious path forward for some of the prisoners – most of whom have been held for 20 years without trial – the administration appears to be working quietly to move them out of Guantanamo and turn the page on what many see as a failure of justice.

” “There are definitely things happening behind the scenes. Names that I have received from different people are taking different parts of it,” Karen Greenberg (director of Fordham University School of Law’s Center on National Security) states.

A flag flies at half-mast Aug. 29, 2021, in honor of the U.S. service members and other victims killed in the terrorist attack in Kabul, Afghanistan, as seen from Camp Justice in Guantanamo Bay Naval Base, Cuba. Camp Justice is the venue for military commission proceedings in which detainees are charged with war crime. Most of the 39 men still being held at Guantanamo have never been charged with a crime.

While former President Barack Obama placed closing the prison in the centre of his platform but was thwarted by the courts over his two terms, President Joe Biden kept his plan close at hand.

” I understand that people prefer to do this quietly than loudly, but with lots of fuss. Obama’s lesson: The quieter, the better.” Dr. Greenberg.

” “Just in terms of population size, it’s small bus of people,” says Michel Paradis (a senior defense attorney who regularly represents Guantanamo Bay prisoners). “You can figure that out.”

An almost-empty prison

The population of the detention center has been reduced from some 675 in its heyday in 2003 to 39 today. The White House has cleared the release of ten more detainees, providing that other countries are willing to accept them and comply with U.S. surveillance rules. An additional 17 are eligible for evaluation by a periodic review board to determine whether they can be transferred, if they are not found to pose “a continuing significant threat” to the U.S.

At the same time, 20 years after the 9/11 attacks, military commission proceedings for the plotters are still in the pretrial phase. After a 17-month pause during the coronavirus pandemic, jury selection – meant to start last January – has not yet gotten underway. The earliest estimate for a 9/11 trial to begin is 2024. Some are asking why trials seem to be moving so slowly. Beyond the many delays and documented legal problems, only eight military court convictions have been obtained in the last two decades. This has resulted in a cost of over $6 billion in operation and trial costs.

Federal courts, by contrast, have secured more than 660 terrorism convictions since 9/11 – including more than 110 in which the defendant was captured abroad – with a conviction rate upward of 90%. The trials for the Benghazi attacks of 2012 were conducted in federal court, for example, with guilty charges for all and “almost no fanfare,” Dr. Paradis says.

Protesters with Witness Against Torture participate in a rally outside the Supreme Court in Washington, Jan. 11, 2017. Calling for the closing of the Guantanamo Bay prison, they are marking the 15th anniversary of the first Afghan prisoners’ arrival at the detention center.

“The idea that you couldn’t mount a successful, just, and transparent trial of the alleged 9/11 plotters in federal courts is just belied” by these figures, he notes. Although the civil libertarian within me is concerned about this issue, it is actually quite simple to convict terrorists in America. “These federal crimes are written extremely broadly.”

But federal trials have not been an option, since lawmakers have for years woven prohibitions barring the Pentagon from bringing suspects to U.S. soil into the annual defense budget.

Last month, however, the House version of the $768 billion 2022 National Defense Authorization Act ended this ban with a bipartisan vote.

The Senate needs to approve its version of the bill that currently contains the prohibition. And eight Republican senators, including Ted Cruz of Texas and James Inhofe of Iowa, wrote a letter in May to Mr. Biden expressing concern that “the 40 remaining detainees are all high risk.”

Federal prisons holding them would be enticing terrorist targets, lawmakers have argued. “Consider the propaganda value for ISIS if it successfully sprang a hardened Gitmo terrorist on American soil,” Republican Rep. Scott Perry of Pennsylvania said in a 2016 hearing. “Anyone who thinks this is impossible is suffering from, as the 9/11 Commission put it, a ‘failure of imagination.’ “

Major County Sheriffs of America, which represents sheriff’s offices from the largest counties, has weighed in as well, warning that “detainees deemed too dangerous to release should not be brought to the homeland where they will pose a threat to the local communities we serve.”

Such “pearl clutching” concerns that Guantanamo Bay detainees could not be safely held in a federal prison are “ludicrous,” Dr. Paradis says. The U.S. houses “more and worse people in regular prisons every day.”

The men are also 20 hard years older; Trump-era renovation plans for Guantanamo Bay include provisions for wheelchair ramps. Dr. Paradis says, “So we need to worry about two dozen people as if they are somehow the X-Men.” “It’s fear-mongering.”

“Too damaging to the soul of the U.S.”

Yet even if the worst-case scenario happened, it would be worth suspending military commissions altogether and trying the cases in federal court, says Mr. Ashmawy, the Air Force prosecutor. Maybe some of them are acquitted. He suggests that they might return to combat. They should not be allowed to go to trial if they are unable to provide the same protection to themselves and their own families. They should be released.”

He pauses. He pauses.

This willingness to accept political, and sometimes even physical, risk is essential for democracy says Mr. Ashmawy. His father hails from Egypt, and his mother is Italian. “The military seemed like the best way to do that.” To me, the military seemed like the most appropriate way to accomplish that .”

But his experiences in prosecuting Guantanamo bay detainees to military commissions made Mr. Ashmawy realize that this is not the America that he loves. This view crystallized for him after he secured a guilty verdict in August 2008 against Osama bin Laden’s personal driver, Salim Ahmed Hamdan. The military jury found that he had provided material support for Al Qaeda but acquitted him on terrorism conspiracy charges. With credit for five years of service at Guantanamo bay, Mr. Hamdan was sentenced with a 5 1/2 year term.

The twist came next. The twist came when Mr. Ashmawy recalls that an official statement was made that no matter what sentence he received from a military court, it did not matter. According to a Pentagon spokesperson, even after Hamdan has completed his sentence, DOD can continue to detain Hamdan as an enemy combatant. The decision to release Mr. Hamdan was easier in my opinion [to stop prosecuting detainees],” Mr. Ashmawy states. I mean, how long are they going to be held? It’s already been forty years. It’s already been 20. It’s been 90. The detainee known as Abu Zubaydah challenged U.S. government efforts to block testimony about torture at secret CIA “black sites.” The treatment of Mr. Zubaydah – including intensive waterboarding and being locked in what was essentially a coffin for hundreds of hours – was among the most appalling revelations in the Senate Intelligence Committee’s 2014 report. The CIA concluded that Mr. Zubaydah was not a member Al Qaeda, yet he remains in U.S. custody at Guantanamo bay. “I don’t understand why he’s still there after 14 years,” Justice Stephen Breyer said during oral arguments Wednesday.

Mr. Hamdan, for his part, was transferred to Yemen in November 2008 and released under supervision by the government there in January 2009. In 2012, his conviction was overturned by the U.S. Court of Appeals for the District of Columbia Circuit, and he was acquitted of all charges. This was a credit to U.S. federal court, Mr. Ashmawy states. “Indefinite confinement, without any meaningful rights,” he adds, “is simply too damaging to the soul of the U.S. to accept.”

Editor’s note: An editing error in Defense Secretary Lloyd Austin’s quote has been corrected.

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