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Quick Thoughts: Lisa Hajjar on Guantanamo Bay and High Seas Detention

[The five 9/11 defendants in the Guantánamo military commission, June 2014. Artwork by Janet Hamlin.] [The five 9/11 defendants in the Guantánamo military commission, June 2014. Artwork by Janet Hamlin.]

[Jadaliyya Co-Editor Lisa Hajjar recently returned from her fifth visit to the US naval base in Guantánamo Bay, Cuba, where the United States has maintained a military prison facility since 2002. Below she provides her impressions and analysis of the current state of military trials.]

Jadaliyya (J): You recently visited Guantánamo to report on the military commission proceedings. What is the state of the cases currently on trial?

Lisa Hajjar (LH): In the 9/11 case, there are five defendants, including self-declared “mastermind” of the terrorist attacks, Khalid Sheikh Mohammad (KSM). In the USS Cole case, there is one defendant, Abd al-Rahim al-Nashiri, who is charged with offenses relating to the suicide bombing attack against a naval vessel while it was refueling in the Yemeni port of Aden in 2000.

There are two interrelated reasons why these cases have been dragging on for so long and remain stuck in the pre-trial phase: all six defendants were held for years in secret CIA custody and tortured, and the government is seeking the death penalty in both cases. These issues are interrelated because of the secrecy that surrounds the CIA’s torture program. The defense teams want—and in the interest of a “fair trial” arguably deserve—information about the treatment of their clients from the time they were arrested until they were relocated to Guantánamo in September 2006. However, the government has resisted making this information available to the attorneys, despite the fact that they all have top secret security clearance. Hence, what is happening in the military commissions are battles, waged through motions, to litigate between secrecy and disclosure.

We could break this down into two questions: Why is the government trying to exclude this information from the discovery process, given that President Obama ended the torture program? And why do the defense teams insist that they should have it? The government’s position, as articulated by General Mark Martins, the lead prosecutor in both cases, is that no statements or information elicited through torture will be used against the defendants. Martins characterized their abusive treatment at the hands of the CIA while they were disappeared in black sites as a mistake by the previous administration. The government's objective in these trials is to provide accountability for 9/11 and the USS Cole bombing. I would interpret that to mean that the defendants, not the CIA, are on trial. 

The defense teams insist on their right and need to access this information because, among other reasons, it is relevant to the issue of mitigation. In capital cases in US courts, trials are composed of two components: the adversarial struggle over charges that concludes with a verdict, and the sentencing phase when defense lawyers can argue against the death penalty for clients found guilty on the basis of factors that should mitigate the “ultimate punishment.” Each of the six defense teams has a “learned counsel,” that is, a lawyer who is learned in capital law. Those whom I have interviewed have expressed astonishment that information about an obviously mitigating factor such as years of torture and cruel treatment could be withheld as they try to prepare their cases. However, on 25 June 2014, the al-Nashiri team prevailed in its motion battle for disclosure about the CIA program when Judge James Pohl (an Army colonel who is presiding over both cases) confirmed his decision that this information should be provided to the defense. It would be reasonable to assume that Judge Pohl will rule in a similar fashion for the 9/11 case whenever the relevant motions get to the top of the docket. 

One of the many ironies about these trials is the possibility that several of the 9/11 suspects do not want to be spared from a death sentence. In late 2008, during the lame duck period of the Bush administration, at a 9/11 hearing KSM stated that the defendants would be willing to plead guilty on the condition that they go directly to sentencing, and the sentence be death—suicide by military commission. However, there was no contingency for that outcome in the statute, so the case was suspended until the defendants were re-arraigned during the Obama administration’s first term. Now, it seems, the five 9/11 defendants are willing to allow the case to proceed, and are not opposing their lawyers’ efforts to try to gather information about the time they spent in CIA custody. 

This June, the only issue on the docket for the 9/11 case was the blowback from revelations in April that the FBI had recruited individuals on the defense teams (not lawyers) to inform on their colleagues about any illegal activities such as any disclosure of classified information regarding their clients’ torture and/or conditions of confinement in the secret facility where they are held, which is known as Camp 7. At the one-day hearing where the prosecution was excluded or “walled off,” the defense lawyers urged Judge Pohl to convene a full inquiry into the FBI spy operation in order for them and their clients to know whether confidentiality—an essential component of the rule of law—had been irreparably breached. As of this writing, the judge has not rendered his decision on the matter.

Another sticking point in the 9/11 case is the Memorandum of Understanding that the government wants the defense lawyers to sign. Only one has signed so far. The other teams are resistant, not because they are unwilling to follow the rules, but because the document includes a clause that they “agree” with the terms. For these American lawyers, the unique conditions that dictate their work in this court system are reprehensible and, arguably, unethical. For example, the terms of the agreement would prevent lawyers from helping their clients reach out to human rights organizations or UN agencies that deal with torture. Judge Pohl, no expert in international law, rejected their motion for the right to seek remedies under the Convention against Torture, and this is something that they want to relitigate. If they sign the agreement in its current form, they would in essence be voluntarily abandoning that option. So their position is that they can abide by, without agreeing to, the rules. The prosecution’s position is that the discovery process will not proceed until they sign.

J: Has the recent prisoner exchange—five Taliban detainees for the American prisoner-of-war Bowe Bergdahl—affected the debate surrounding the continued existence of the Guantanamo Bay military prison? 

LH: One immediate effect of the exchange was a resuscitated media interest. For the first time in several years, major television news outlets—CNN, NBC, and Fox—sent journalists to Guantánamo in June. At the first press conference with General Martins, that issue dominated questions posed to him. He explained that the five Taliban who were dispatched to Qatar in exchange for Berghdahl were not slated for prosecution in the military commissions. But neither had they been cleared for release prior to the political deal—unlike the seventy-eight detainees who have been cleared for release but nevertheless remain imprisoned. Rather, they were designated for indefinite detention by the Obama administration’s Task Force in 2009; this is a category of people who cannot be tried for lack of evidence or some other reason, but are deemed too dangerous to be released. The transfer of the five Afghans brings the number of indefinite detainees down to twenty-nine.

In terms of the effect of the prisoner exchange on the larger political debate about Guantánamo, the Obama administration’s secrecy and haste in executing the deal—and the failure to report to Congress prior to the transfer of the five Afghans—has generated an entirely predictable wave of huffing and puffing in Washington. A couple of Republicans in the House of Representatives have introduced a bill that would impose criminal penalties for officials who deviate from the rules in any future transfer of Guantánamo detainees. 

J: Why has the Obama administration maintained this prison despite pledges to close it? 

LH: Many Republicans and more than a few Democrats in Washington believe that the prison and the military commissions are necessary and wonderful additions to the American legal apparatus. Hence, while political partisanship is a defining characteristic of domestic politics on almost all matters, there is a sufficiently strong bipartisan consensus in Congress that makes closure nearly impossible. This includes a legislated prohibition against moving any Guantánamo prisoners to the United States for any reason, including trial in a federal court. If there is a political constituency in America that wants to close Guantánamo, it is much too weak to prevail over those who do not. 

President Obama has also contributed to the problem that he ostensibly wants to resolve. For example, in early 2010, he issued an order barring the transfer of anyone to Yemen. The majority of prisoners are Yemeni, including fifty-eight who have been cleared for release.

J: Does Obama really want to close the Guantánamo Bay prison? 

LH: The one way in which Obama has been willing and able to demonstrate his commitment to closure is by refusing to transfer any new prisoner to the facility; the last prisoner arrived in 2008. On 15 June 2014, an Army Delta Force team and FBI agents captured Ahmed Abu Khattala in Benghazi, Libya, and transferred him to the USS New York. Following news of his capture, there was the usual clamor among Guantánamo enthusiasts, like Senator John McCain, that he should be sent there. 

Abu Khattala was held aboard ship for nearly two weeks before being brought to the United States on 28 June. Abu Khattala, who is suspected of being a leader of the 11 September 2012 embassy attack in Benghazi, will be arraigned in the US District Court in Washington, DC. 

Abu Khattala is at least the fourth terrorism suspect arrested overseas and transferred to the United States since Obama took office. Ahmed Abdulkadir Warsame, a Somali national, was captured in the Gulf of Aden on 19 April 2011 and held for over two months aboard the USS Boxer, an amphibious assault ship with a brig. In December 2011, he pled guilty to charges of material support for al-Shabab and al-Qaeda in the Arabian Peninsula. In 2013, US Special Forces captured Abu Anas al-Libi during a raid in Libya and held him for eight days aboard a ship before transferring him to New York where was already indicted for his role in the 1998 African embassy bombings.

In the case of Warsame, and possibly Abu Khattala as well (details have not yet been disclosed), the high seas detention option is a means of engaging in protracted interrogation without the obligation to inform a person of his Miranda rights (the “public safety” exception). The protocol for shipboard detention blends two approaches to interrogation: first, law of armed conflict questioning for “actionable intelligence” by security agents, then the introduction of a “clean team” of FBI interrogators who engage in questioning for the purpose of prosecution.

J: What difference does it make whether people are prosecuted in federal courts or military commissions?

LH: One legally sound reason for prosecuting terrorism suspects in federal courts is that the criminal offenses of material support and conspiracy are not recognized violations of military law. This is ignored by people who demand that such cases be tried before Guantánamo military commissions. Let me provide a bit of context: Following the Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld that the military commissions Bush had created by executive decree were unconstitutional, Congress passed the Military Commissions Act (MCA 2006; a revised version of the MCA was passed in 2009). The MCA 2006 reauthorized the commissions and rewrote—“Americanized”—the international laws of war were to make material support for terrorism and conspiracy militarily prosecutable offenses. Salim Hamdan, Osama bin Laden’s driver, and Ali al-Bahlul, an al-Qaeda propagandist, were subsequently tried and convicted on those charges. 

All military commission cases that go to trial, as opposed to those that are resolved through a plea bargain, are automatically subject to appeal. By the time the two Bush-era cases reached the DC Circuit Court of Appeals, Hamdan had already served his sentence and been repatriated to Yemen, but al-Bahlul is serving a life sentence. The court ruled, first in Hamdan, then in al-Bahlul that material support and conspiracy are not military offenses, and therefore the convictions should be thrown out. The government decided not to appeal Hamdan (because his release made it moot) but did so in al-Bahlul in the hope of preserving the conviction, and to be able to continue using the charges against others held at Guantánamo. The court granted the government’s request for an en banc (full court) rehearing. Nine months have passed since the hearing and no decision has been rendered yet. If the en banc panel upholds the earlier decision, then neither conspiracy nor material support can be charged as war crimes for conduct committed prior to 2006 (the year that Congress passed the original MCA). 

According to Adam Thurschwell, general counsel in the Office of the Chief Defense Counsel of the Military Commissions:

The question of whether conspiracy and material support committed after 2006 can be charged as war crimes in military commissions will remain open, however. That question raises a number of broader constitutional issues, including the scope of the war powers and jurisdiction of Article I courts. Those open issues are now presented in the just-referred case of Abd al-Hadi al-Iraqi, who is charged with conspiracy for conduct that occurred after 2006. [Al-Hadi was arraigned on 18 June 2014.] The legitimacy of that charge, which probably will be challenged early in his case, will be the first vehicle for answering the post-2006 question. A lot turns on the answer, because to date the vast majority of charges against military commission defendants has been for conspiracy and/or material support for terrorism. 

If it turns out that military commissions cannot try post-2006 conspiracy/material support charges, then they will be something of an historical relic, and non-HVD (high value detainees)—the cooks, the drivers, et cetera, will have to be tried in federal court if they are going to be tried at all. On the other hand, if post-2006 charges of conspiracy and material support can be tried by commissions, it will leave them with a bit more life—at least as long there is a colorable war going on somewhere and a president who wants to try captured terrorists/“enemy combatants” in them. 

J: Given all these problems and complications, why does anyone still advocate in favor of Guantánamo?

LH: Guantánamo is like a political Rorschach test. The enthusiasts like to characterize themselves as hard-eyed realists, and chastise opponents as weak-willed or wrong-headed with an overweening affection for the rule of law that plays into the hands of terrorists. Former vice president Dick Cheney, one of the chief architects of the US “war on terror,” and his daughter Liz recently formed the Alliance for a Strong America. In the video announcing the new organization, the Cheneys allude to the Obama administration’s “meaningless red lines.” Clearly, given their many past statements, these include his ending of the use of torture and the pledge to close Guantánamo. So the existence—indeed, the popularity—of such views is the answer to your question. 

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