President-elect Barack Obama’s transition team says no decision has yet been made on how to proceed with implementing the pledge to shutter Guantanamo Bay and what legal system to adopt as an alternative to try nearly 200 of the 250 detainees whom the US government considers a danger to national security.
In a hearing on Monday, self-confessed 9/11 mastermind Khalid Sheikh Mohammed and four other “high value” defendants offered to plead guilty for planning the terror attacks, but it was not clear whether the plea would preclude a death sentence. For the first time since the trials began, five relatives of 9/11 victims were permitted to attend what may have been the last session of the military tribunal before Obama takes office on January 20.
Some of the “high value” terrorism suspects were taken on airplanes and told they were being repatriated to countries in the Middle East, where they would eventually be questioned by Arab interrogators.
Defense Secretary Robert Gates, who approves of shutting down Gitmo, has not suggested an alternative to the military commissions. But Obama is on the record as saying the Gitmo captives should be tried either in a federal court or before a military court martial.
Trying detainees in a federal court could lead to complications such as finding a jury that has not heard of the September 11, 2001, attacks and has not formed opinions about them. And apart from the obvious security problems such trials may pose, a military court martial, which is designed to try US military personnel, may give terrorist suspects the status of soldiers as defined by the Geneva conventions—a controversial issue, as terrorist suspects are “transnational” fighters and do not belong to a regular army of any particular nation.
Former Deputy Attorney General Eric Holder, named by Obama as the next US attorney general, was quoted last June as saying detainees who cannot be released or transferred to their home countries should be sent to military prisons. However, some members of Congress oppose keeping convicted militants in any prison within America and do not want such militants in their congressional districts. There are also fears that such prisoners could ultimately win their freedom by securing federal legal protections if incarcerated on US soil.
While 60 detainees have been approved for transfer to their home countries, the Bush administration has balked at repatriating them for fear they may be tortured or persecuted in their home countries. There is also fear that they may be released early, allowing some of them to return to the “battlefield.” European governments have not welcomed the idea of granting humanitarian resettlement and protection to some of those captives.
Furthermore, introducing a new legal system may open the door for prisoners already tried and sentenced to demand a retrial or an abrogation of their sentences. A legal system that would ban holding suspects for as long as six years without charge or a trial could also encourage prisoners to demand release and compensation for false arrest and illegal detention without trial.
The fact that Gitmo prosecutors “are still trying to push the ball down the field in the remaining 40 days of the Bush administration just speaks volumes about the political nature of these prosecutions,” Anthony Romero, executive director of the American Civil Liberties Union, told reporters. The New York-based legal advocacy group provided civilian lawyers for the defendants.
The military tribunals to try foreign terrorist suspects have been delayed for years by legal challenges. In 2006, the US Supreme Court ruled an earlier version of the commissions was unconstitutional, forcing the Bush administration and Congress to revise guidelines for the military tribunals at Guantanamo.
After years of delays, preliminary hearings began last September for the five men accused of masterminding the 9/11 attacks. The trials have been held up for years because of constitutional wrangling over the issue of legal rights for so-called enemy combatants. And while the trials still won’t start in earnest until next month at the earliest, the initial proceedings have been anything but smooth, as the angry Al Qaeda prisoners air their frustrations. One tried to fire his lawyer, another refused to speak, and a third grilled the judge about his religious background.
Officials close to the Obama team were quoted by CNN as saying the incoming administration is considering putting some of the inmates on trial in existing federal courts, setting up a special national security court to deal with cases involving sensitive intelligence and releasing other inmates.
In 2006, President Bush said he would like to close the prison but that it needed to remain open to house what he called “cold-blooded killers.” The Pentagon’s chief prosecutor resigned in protest in 2007 after declaring the military commissions had become “deeply politicized.” Critics say the camp has damaged the reputation of the United States overseas, with a UN report declaring that interrogation techniques used on prisoners “amounted to torture.”
The White House has consistently denied that America practices torture, but CIA officials have admitted to using waterboarding. The technique, which is said to simulate drowning, has been considered a war crime in the past.
Several detainees, including Mohammed, were moved to Guantanamo Bay in September 2006 after being held in secret CIA prisons around the world. According to Arab intelligence sources who spoke to The Daily Beast, some of the “high value” terrorism suspects were taken on airplanes and told they were being repatriated to countries in the Middle East, where they would eventually be questioned by Arab interrogators.
What the detainees did not know was that US officials were watching and hearing the interrogations from behind glass windows without the knowledge of the detainees. The trick was designed to convince suspects that Arab interrogators, who are known for their brutality and effective torture techniques, would convince the detainees to confess to things they would not otherwise confess to American interrogators.
Salameh Nematt is the International Editor of The Daily Beast. He is the former Washington Bureau Chief for Al Hayat International Arab daily, where he reported on U.S. foreign policy, the war in Iraq, and the U.S. drive for democratization in the broader Middle East. He has also written extensively on regional and global energy issues and their political implications.