Contracts (in the Form of Plea Deals) Are the Way to Close Gitmo

Yes, I know, it’s a stretch, but bear with me.  It’s Friday. 

The Serial podcast has devoted its fourth season to the detention facility and military tribunals located in Guantanamo Bay, Cuba.  I recommend it to people who have not kept up with the unmitigated legal, political, and humanitarian disaster that is Gitmo. For people like me, who have written about Intolerable Abuses in connection with the war on terror, there is not a lot of new material in the series, although it is very nice to have two episodes devoted to the singular work of Carol Rosenberg, the last journalist standing on the Gitmo beat.

Serial does a good job exposing the extent to which paranoid fantasies about having captured “the worst of the worst” justified mass violations of the law of armed conflict, as well as U.S. law, not only in connection with mistreatment of detainees but also when suspicion fell on Muslim or Arab translators and service members. I wish the podcast had started with an episode (at least) on the legal fictions on which Gitmo and various overseas black sites were built. The people who dreamed up these criminal nightmares have not been held to account, and they never will be. But we need to be reminded of who they are and how they were able to realize a detention system under color of law designed to evade both substantive law and legal accountability.  The time may come again soon when we need to be on guard against the deployment of mass hysteria and paranoia to justify lawless government conduct.

The mother of all podcasts, This American Life, had a Serial spin-off episode called The Forever Trial about legal proceedings that will never result in a trial of the five Gitmo detainees who helped plan and carry out the 9/11 attacks on the United States. If Gitmo could get any trials done, it ought to be these.  I won’t rehash here all the ways in which Gitmo is an unmitigated disaster.  Here are some highlights with help from The New York Times:

• Of 779 people sent to Gitmo, thirty remain;
• Most of those released were low-level foot soldiers or people who just got caught in the wrong place at the wrong time or were turned in by people more interested in government bounties than in preventing terror attacks;
• Of the remaining thirty, about half have been cleared for release, but the U.S. cannot release them because no county will take them;
• One current detainee has been convicted of crimes by a military tribunal, but two of his three convictions were overturned because the military tribunal had no jurisdiction over the alleged crimes;
• All told, according to Reprieve.org, only eight detainees have been convicted of a crime, and four of those convictions were overturned
• According to Carol Rosenberg, American taxpayers pay an estimated $13 million annually per prisoner at Gitmo, while detention in a Supermax prison costs $78,000/year per prinsoner.

Okay, so contracts.  The 9/11 conspirators and a Gitmo detainee responsible for the attack on the USS Cole, Abd al-Rahim al-Nashiri will never be brought to trial.  The 9/11 conspirators were transferred to Gitmo for trial in 2006.  Some of the reasons why they still have not been tried include:

• Use of torture has rendered most of their inculpatory statements inadmissible;
• The judge in the military tribunal for al-Nashiri also excluded evidence from interrogations by a “clean team,” and the same may happen in the trial for the 9/11 conspirators;
• A jury in a military tribunal in Majid Khan’s case (recounted here) recommended clemency after learning of the extent to which Khan was tortured while in U.S. custody;
• The trial of the 9/11 conspirators is on its fourth judge, and he will retire at the end of the year;
• The chief prosecutor bringing the case abruptly retired in 2021, and two other case prosecutors left in 2021 and 2024;
• One of the defendants has been separated from the case because he is incompetent to stand trial;
• The case raises novel due process concerns both because much of the evidence is classified and cannot be shared with defendants and because;
• There is considerable evidence that the U.S. government has surreptitiously listened in on and/or recorded privileged communications between the defendants and their attorneys.

As recounted in The Forever Trial podcast episode, some very knowledgeable survivors of 9/11 victims now favor plea deals as their only chance at closure. These survivors oppose the death penalty and also think the government owes the detainees humane treatment at this point, regardless of their crimes. Plea deals are negotiations, and the negotiations here are complex. The detainees are no longer being subjected to enhanced interrogation techniques, and their accommodations at Gitmo are more comfortable than those at a Supermax facility.  They have some bargaining power.

When news of the possible plea bargains leaked out, the conservative noise machine went to work, complaining that none of the detainees responsible for 9/11 will now face the death penalty.  This is a reprise of the GOP response when President Obama sought to close Gitmo in 2009.  He was right they were wrong.  If the GOP were committed to poltical aims beyond opposition to whatever President Obama opposed, trials of the actual worst of the worst would have been long over, and they would have long ago joined Zacarias Moussaoui, the alleged 20th 9/11 hijacker, who was convicted after trial in an Article III court and is currently serving a life sentence in a Supermax facility in Colorado. 

We know that al-Nashiri and the 9/11 conspirators will not face the death penalty in any case.  A plea bargain will end the fiasco of Guantanamo, give closure to the victims.  It will also give the victims’ survivors and the rest of us access to information from the perpetrators that the survivors desperately want and the rest of us need to complete the historical record of a very dark day in our national history.