Another 9/11 Anniversary at Guantánamo, Amid Hurricane Irma

By Amy Davidson Sorkin, The New Yorker

12 September 17

arly last week, even as the United States military was scrambling to move resources ahead of Hurricane Irma, it was loading a surgical team onto a Navy C-40 jet, headed to the base at Guantánamo Bay to operate on a prisoner. The team, Carol Rosenberg, of the Miami Herald, reported, included “a neurosurgeon, a neuroradiologist, an operating room nurse and a pair of neurosurgical technicians,” with a couple of pallets of medical equipment in tow. Their patient, Abd al Hadi al Iraqi, who also goes by the name of Nashwan al Tamir, is an alleged Al Qaeda commander who is fifty-six years old and has been held at Guantánamo for ten years; according to the doctors his lawyers had consulted, his chronic spinal problems had flared up in a way that, if not treated, could leave him partly paralyzed. The base’s medical facilities are not equipped for such a procedure. Given that the commander was in the midst of battening down the facilities, it might have made practical sense to simply medevac Hadi to a military or prison hospital somewhere else. But that would have been against the law: in 2010, Congress passed legislation that made it practically impossible to bring any Guantánamo prisoner to the United States, even temporarily, even at the President’s order. And so the doctors and nurses and technicians got on a plane, and flew toward Irma.

In some ways, Hadi is an unusual prisoner. Of the forty-one people still held at Guantánamo—down from two hundred and forty-two when President Barack Obama was inaugurated—he is one of only seven who face charges before a “military commission.” The others are Khalid Sheikh Mohammed, the admitted master planner of the September 11, 2001, attacks on the World Trade Center and the Pentagon; four of his co-conspirators; and Abd al Rahim al Nashiri, who is accused in the 2000 attack on the U.S.S. Cole, in waters near Yemen. Mohammed was captured in 2003—almost fifteen years ago—but his trial has yet to begin. In a series of hearings in recent weeks, the prosecution submitted a proposal to finally get things rolling in January of 2019. The defense and the military judge both indicated that even that date would be wildly ambitious. Last month, when President Trump announced his Afghanistan policy with the news that the United States would send another round of troops to fight there, he and others remarked on the widespread frustration about the length of the war. The Twin Towers fell sixteen years ago today, meaning that young Americans who were not even born then could soon be fighting in the Afghan war. The same could be said about the guards at Guantánamo. But a measure of the futility of the legal response to the attacks is that there will soon enough be young military officers, at least eligible to serve as the equivalent of jurors on the military commission, who were also born after 9/11.

In part, the delays are due to some of the same practical factors that led the military to fly a surgical team to Guantánamo when it had plenty else to worry about in the Caribbean: figuring out where to house the lawyers and other personnel, for example. And there is only one courtroom at what is known as the base’s Camp Justice that is equipped for proceedings using top-secret classified evidence, which is what both the 9/11 proceedings and the U.S.S. Cole trial, which a second judge, Colonel Vance Spath, is presiding over, would be. (Both are also death-penalty cases, which introduces another layer of complexity and, rightly, lawyering.) That courtroom was initially double-booked for several pre-trial hearings, with both cases pencilled in for the same dates in 2018. The idea was that this might be managed with a second shift. The Herald’s Rosenberg—who, often enough, is the only reporter at these proceedings, doing the work, on her own, that might be shared by dozens of journalists in a civilian courtroom—wrote that, when Judge Pohl learned of that plan, he didn’t react well. “This case will not be night court, O.K.?” Pohl said.

Rosenberg noted that it might not have to come to that. Given how often the military cancels hearings, the dates had an imaginary quality to begin with: you schedule two on a day and end up with neither happening. But Pohl was raising an important point about something else that the proceedings have lacked, namely dignity. There were supposed to be hearings for both the 9/11 and the Cole cases in July, but Pohl and Spath put them on hold because, for one reason or the other, the Navy didn’t want to provide a fast boat to take the judges and their staffs from the airstrip to the courthouse, saying that they should just get a ride with victims’ families and the prosecution and defense lawyers. The judges objected, saying that this threatened their independence and violated their rules against “co-mingling.” The resolution involved the transfer of three hundred dollars from the Pentagon to the Navy; it took about a month to work out that deal. For perspective, it costs about four hundred and forty million dollars a year to maintain Guantánamo prison, or more than ten million dollars per inmate.

But, as absurd as the boat dispute might sound, it illustrates not only the logistical complexities of holding what should be the trial of the century on an isolated offshore base but the fact that, even now, the legal procedures are largely improvised. The military commissions are neither traditional courts martial nor civilian courts but a system slapped together after 9/11, partly in reaction to Supreme Court rulings in favor of Guantánamo prisoners being denied basic rights. As William Finnegan laid out in a recent profile of Zainab Ahmad, an Assistant U.S. Attorney in the Eastern District of New York, America’s civilian courts actually have quite a good record prosecuting terrorists so far, with six hundred convictions just since 9/11. (Ahmad has won thirteen of those herself.) The military commissions have only produced eight convictions, most as the result of plea deals in connection with transfers to other countries, and four of those have been overturned, in whole or in part. (Three convicted prisoners remain at Guantánamo: two awaiting a sentence, and one serving one.) Civilian courts also have time-tested procedures for dealing with classified material. In contrast, the latest round of military-commission hearings came to a halt at one point when everyone realized that, although the prosecution and defense lawyers had been given clearance to see a certain document, Judge Pohl had not. While that was being sorted out, there was a rush to hide the evidence from the judge who was expected to rule on it.

Khalid Sheikh Mohamed and Nashiri are Guantánamo’s marquee names. Five other prisoners, though, have been cleared for release, a long process that includes multiple agencies determining that they pose no threat. These are people who probably never should have been sent to Guantánamo in the first place; in some cases, they were ordered released many years ago but are still being held. (One problem is figuring out where to send them.) There are also twenty-six people who are known as “forever prisoners,” meaning that the Obama Administration was too uncertain about their innocence to release them but too timid to file charges against them—whether this was out of fear of an acquittal or because something embarrassing to the government might have emerged, it is impossible to say without a trial. President Obama enshrined this hesitation in a process of “periodic reviews.” The status of these prisoners remains what it is: indefinite detention on no charge, a distinctly un-American condition. The day before Obama left office, he sent a letter to Congress complaining that “politics” had kept him from closing the base. That is true, to an extent: even though George W. Bush had transferred twice as many prisoners as Obama ever did, once Obama took office, the Republicans used the prison issue as a cudgel. When the Obama Administration put together a comprehensive analysis demonstrating, among other things, that supermax prisons did a good job of holding even the worst terrorists, Senator James Inhofe, the Republican of Oklahoma, said that the report was “simply giving cover to President Obama so that he can continue what he is already actively working towards, which is bringing terrorists onto U.S. soil.” But politics is not something that just descends on a President, like a hurricane. Even before Congress made it much harder, the Obama Administration had muddled its chances to close Guantánamo. In 2009, Attorney General Eric Holder said that he would bring Mohammed to New York, to stand trial in federal court. This was the key moment; we might have had a trial years ago if the Administration had stuck to that decision. But, in the face of opposition from Republicans and local politicians, the Administration backed down.

What this means, in short, is that although Obama scaled Guantánamo down, and brought it a great distance from the days when prisoners were abused there, his successor, Donald Trump, could easily scale it up again. He has said that he wants to keep it open: during the campaign, he said, “We’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” That hasn’t happened yet, but, last week, Secretary of State Rex Tillerson announced that the job of the State Department official assigned to work on closing Guantánamo would be eliminated. The retired general John Kelly, Trump’s chief of staff, oversaw Guantánamo when he led the military’s Southern Command, and has dismissed criticisms of the site as media exaggerations. Soon after the three-hundred-dollar boat-ride dispute, the Pentagon awarded a forty-three-million-dollar contract for a new fibre-optic system for the base. There are plans for a half billion dollars in construction projects, including a new hospital.

Meanwhile, the base made it through Irma relatively well, with downed power lines but few signs of damage, an officer told Rosenberg. There were, she reported, a few wet spots in the courtroom ceiling, which would need new tiles. The next time hurricane winds shift to Guantánamo, it might be better prepared. And the 9/11 trial, with its maddening mix of tragedy and absurdity, and its too-delayed promise of justice, might even be under way.