The House Armed Services Committee (“HASC”) released its spending bill, the National Defense Authorization Bill, this past week, reserving a total of $93 million for new construction at Guantanamo Bay Detention Center, including $69 million for a new “high-value detainee complex.” Further, the bill would prohibit the transfer of Guantanamo detainees to the United States for further detention or trial. While the fate of the bill is still uncertain, as it ultimately needs to gain approval from Congress, its very existence indicates that, as many of us have speculated, Guantanamo will not be closing any time soon. Continue reading
The trial of radical Islamic cleric Abu Hamza al-Masri, the latest alleged terrorist to be tried in the federal court system rather than via military commission, is rapidly moving forward in New York. Jury selection was completed this past Monday, when eight men and four women were selected to serve as the jury for the trial expected to last about five weeks. Continue reading
After last week’s conviction of Bin Laden’s son-in-law Sulaiman Abu Ghaith in Federal Court, Attorney General Eric Holder issued a statement praising the trial as a demonstration that Federal Court is the proper venue for high-profile terrorism cases. As I cited in a post earlier this week, Holder said of the trial:
“We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.” Continue reading
Yesterday, officials at Guantanamo Bay announced that United States v. Khalid Sheikh Mohammed, et al. a.k.a the 9/11 trials, will be delayed until at least April. The case has been at a standstill since December when the presiding judge, Army Col. James Pohl, decided to adjourn to determine the mental status of one of the detainees on trial. Continue reading
Abu Anas al-Liby, the Libyan man and suspected al-Qaeda leader accused of aiding the 1998 U.S. embassy bombings in East Africa, appeared in a New York federal court for the first time yesterday. Al-Liby pleaded not guilty to charges linking him to the bombings, as well as charges that allege that he plotted with Osama bin Laden to attack American troops across the Middle East. Reports from inside the court stated that al-Liby appeared weak and in poor health, most likely due to his decision to stop eating while aboard a U.S. ship as well as an ongoing bout with hepatitis. Al-Liby was captured earlier this month after he was found by American special forces in Tripoli. Continue reading
In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials. In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants. The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.
A few days ago, a story came out in which William Lietzau, the Pentagon’s Deputy Assistant Defense Secretary for Detainee Affairs and point-man on Guantanamo Bay, admitted that he would argue against building Guantanamo. This came following Lietzau’s announcement that he would be leaving his post to continue his career in the private sector. He also gave President Obama a pointer on how to close Guantanamo; announce that the so-called war against al-Qaeda has come to an end. Lietzau, who was key in getting Guantanamo built in the first place, was quoted as saying, “[a]rguably, if the war aim of diminishing Al Qaeda’s ability to mount a certain level of attack has been achieved, we could declare an end to hostilities and return to dealing with the threat as a law enforcement matter.” Continue reading
It now appears that the government is taking steps toward lightening the burden on Guantanamo Bay, and perhaps even closing it. Yesterday, The New York Times reported that the Senate Armed Services Committee approved the National Defense Authorization Act for 2014. The bill will lift a ban on the transfer of detainees to the United States for the purpose of prosecution. The bill also pertains to transferring detainees for medical reasons, or even for continued detention in American prisons.
Since 2011, the U.S. Secretary of Defense has been required to certify that a list of conditions have been met before a detainee could be transferred. Most of the conditions were extra security measures that essentially stopped the government from even attempting transfers, even for low-security risk detainees. Under the new bill, the checklist would be done away with and the Secretary of Defense would only need to certify that the transfer would be in the best interest of national security. This would be a much more flexible process that would probably lead to more transfers and possibly more trials for detainees.
Although the bill has been approved, it still has a long way to go before it becomes a law. No actual vote has been held; members of the Committee have only agreed to debate the bill’s provisions on the Senate floor. A rival bill has also been drafted by Republicans in the House of Representatives that would maintain the blanketed ban on transfers for any reason whatsoever.
So what are the benefits of the bill? First of all, it might speed up the process for detainees who are actually being charged with crimes. Military tribunals are notoriously slow, and we often have to wait years before we see a verdict in these trials. If we opened up our traditional court system, we might see quicker results. That’s not to say that our traditional system is lightning quick, but if we remove some of the barriers that prosecutors and defense attorneys face in military tribunals we would probably see a lot more efficiency.
Aside from that, the cost of providing medical treatment to detainees at Guantanamo can be astronomical. Medical expenses are high as it is, but when you factor in transportation costs for medical personnel and equipment, they become ridiculous. We would not only be able to cut our bottom line if we were able to provide quicker, better, and cheaper medical attention for detainees, but we would probably be able to quiet some of the human rights concerns that have stemmed from force-feeding detainees that have been on hunger strikes for months now.
Overall, there are a lot of positives to be found in the bill. President Obama’s initial promise to close Guantanamo a year into his presidency has turned into a lengthy debacle and it doesn’t look like the government will be able to close it in one fell swoop. If we make the decision to close it, it’s going to be a long process. And even if this bill were voted into law it’s probably unlikely that high-value detainees would be transferred due to security issues. So is this bill just a small step towards the slow phasing-out of Guantanamo Bay? Yes. But it’s a step nonetheless, and a step we can build on.
Chris Whitten, Research Fellow
Center for Policy and Research
Lost in the shuffle during a week where the NSA scandal has dominated headlines is more news coming out of Guantanamo Bay. On Monday, the government released the identity of Guantanamo’s “indefinite detainees,” or those who the government has deemed too dangerous for release regardless of whether they can be tried in a military court. The government has already announced that a number of these detainees will be held indefinitely even though they cannot be tried due to lack of evidence. The names have been kept secret since 2009 when multiple agencies investigated files on detainees in order to support President Obama’s initial effort to close the Guantanamo Bay Detention Center. Normally these detainees could not be constitutionally held without the possibility of trial, but in 2001 Congress authorized the practice with the “Authorization of Military Force” bill.
Human rights groups including Human Rights Watch and Amnesty international have condemned the idea of “indefinite detainees,” calling for the release of all prisoners that the government has no intention of trying in a court of law. Some men on the “indefinite detainees” list are actively involved in the well-documented hunger strikes. At least two, both Afghani men, are deceased, with one committing suicide and the other dying of natural causes in Camp 6. While the practice of holding detainees without the possibility of trial may be controversial, the release of their identities is a small step towards the transparency and legitimacy that human rights groups have been calling for in recent years.
In other Guantanamo-related news, pre-trial hearings for five men accused of plotting the September 11th attacks resumed on Monday, four months after CIA listening devices were discovered in conference rooms used by the detainees’ attorneys. Included in this group is Khalid Sheik Mohammed, the alleged mastermind of the attacks. The hearings included statements from defense attorneys claiming that CIA personnel tortured the detainees while they were being held in overseas prisons prior to their transfer to Guantanamo Bay. They have also filed motions to dismiss the case due to meddling by senior military officials.
Also present in the courtroom were two victims and family members of three other victims that perished in the attacks. The observers met with prosecutors and defense attorneys earlier in the week and pleaded for a quick and efficient trial. At least one victim, a firefighter who was injured by falling rubble in the aftermath of the attacks, is expected to testify on behalf of the prosecution. As one could imagine, the trials will probably not be very speedy. Detainee trials at Guantanamo have been ridiculed for many reasons, one of the biggest being that they are inefficient and often take years to complete. These particular observers have been waiting on an outcome for some twelve years. Although the trials are resuming, we may have to wait a lot longer to see a resolution.
Chris Whitten, Research Fellow
Center for Policy and Research
Later this week, the trial of an alleged al-Qaeda bomber and current Guantanamo Bay detainee suspected of orchestrating the 2000 bombing of the USS Cole will continue, and one of the first items on the docket is a top secret motion from the government. Classified motions are not exactly rare in military trials against detainees, but this one is particularly interesting. Those who know the contents of the motion are barred from discussing any of its contents, and even the defendant, Abd al-Rahim al-Nashiri, and his defense team are not allowed to obtain declassified information regarding the motion unless the Army judge presiding over the trial compels it. In fact, al-Nashiri’s lead attorney told reporters that his defense team had to fly to Washington, D.C. just to read it.
Army Brig. General Mark Martins, the government’s lead prosecutor on war crimes, insisted that his office was not using classification to cover up any embarrassing episodes, stating that there are “important narrow occasions” where the government may classify information “to protect national security interests.” Still, the motion has already attracted negative attention from critics of the Pentagon court, which uses the motto “Fairness – Transparency – Justice.” Yale law professor Eugene Fidell likened the motion to playing charades in the dark. Even before news of the classified motion was released, a defense attorney filed a motion in May opposing any closure of future motions against al-Nashiri.
Military hearings at Guantanamo have been criticized for some time due to concerns over secrecy and the legitimacy of hearings against detainees, and this news will only add fuel to the fire. The government is seeking the death penalty against al-Nashiri, and anything less than full disclosure of the government’s case against him leads to serious questions regarding the fairness of military trials against detainees. In fact, Professor Fidell was quoted as saying,
“We’re supposed to be talking about the rule of law. You can have an all-star team of justices – Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick – and if they’re working in a closet you can forget about it in terms of public confidence in the administration of justice.”
The timing of this news was poor for the government in light of the recent leak of information regarding the NSA’s surveillance scandal. With public concern regarding government secrecy rapidly growing, we should expect a great deal of criticism regarding the use of classified motions against detainees at Guantanamo. And when the stakes are so high, we should be calling for more transparency and legitimacy in trials against detainees.
Chris Whitten, Research Fellow
Center for Policy and Research