Even Trump administration officials admit that trying terrorists in military courts “doesn’t work.” That’s not stopping the Trump administration from doing it anyway. It’s charging an Indonesian terrorist with war crimes, even as officials concede that the new case is likely to become the latest procedural disaster facing U.S. military commissions.
Riduan Isamuddin, known as Hambali, has been in U.S. custody since 2003, when the CIA captured him, took him to an undisclosed black site prison and tortured him. Since 2006, Hambali, the former al Qaeda leader in Southeast Asia, has been held at Guantanamo Bay, alongside other black site veterans whose torture has turned their military prosecutions into a morass of legal challenges.
“The decision to charge Hambali after six years of unsuccessful prosecutions in other military commissions cases suggests the U.S. has not learned from its mistakes in [pursuing] military commissions in the first place,” said James Connell, an attorney for 9/11 defendant Ammar al-Baluchi.
A Trump administration official familiar with an internal and still-unfolding debate over the future of detentions told The Daily Beast that charging Hambali was “short-sighted” and “indicative of a lack of understanding of the complications of U.S. detention policy,” particularly without a broader policy framework for the Hambali case.
“It’s kicking off a procedure that will take an indefinite period of time. This system doesn’t work,” said the official, who was not cleared to speak publicly.
Hambali is believed to have directed mass-casualty terror attacks in Indonesia for al Qaeda that killed hundreds of people in 2002 and 2003. He’s been in legal limbo for 14 years. But his military tribunal may move him further from justice.
Both George W. Bush and Barack Obama struggled to invest the military commissions with the legitimacy of civilian courts. Yet even with its most significant case, the 9/11 conspiracy charges against al-Baluchi, Khalid Shaikh Mohammed, and their co-defendants, the commissions process has yet to actually get to trial. Instead, pre-trial hearings have overshadowed the main events, as defendants seek disclosure of their torture at the hands of the CIA – as well as alarming concerns about ongoing auditory torture or the FBI infiltrating defense teams. Since 9/11, the much-touted military commissions have produced only eight convictions, and the majority of those have been vacated or overturned; the most solid convictions come from three plea deals, rather than outright victories for the government.
A major issue for the Pentagon-provided defense teams is that their clients want evidence of their torture introduced into their death-penalty cases, so they can argue the inadmissibility of whatever they told their interrogators. But attempting that requires overcoming a wall of official secrecy, even after the release of sections of the Senate’s 2014 torture report, which provided a glimpse into the brutal treatment the CIA meted out to detainees like Hambali.
That’s a major reason why the premiere terrorist crime of the century – 9/11 – won’t go to trial for an unknown-number of years. A prelude to it, the 2000 al Qaeda attack on the USS Cole in Yemen, won’t proceed to trial for defendant Abd al-Rahim al-Nashiri until 2018 at the earliest.
Charging Hambali in military court is “a terrible decision,” said Laura Pitter of Human Rights Watch. “The 9/11 case, the Nashiri case would have been over and done with by now in federal court. Instead, we have all these delays resulting from overclassification in the commissions.”
Hambali’s case is cut from the same cloth.
Declassified portions of the 2014 Senate report do not detail what specific torture the CIA inflicted on Hambali. But CIA cables cited in the report indicate that Hambali cooperated with interrogators before “the use of more intrusive standard interrogation procedures much less the enhanced measures.” He later recanted what he told them under torture, a CIA official cabled home: “[H]e had provided the false information in an attempt to reduce the pressure on himself ... and to give an account that was consistent with what [Hambali] assessed the questioners wanted to hear.” (The U.S. would later say that Hambali’s torture led to the bust of an al-Qaida cell in Karachi, something the Senate report calls “inaccurate.”) At least one interrogator told Hambali, “we can never let the world know what I have done to you,” the report stated.
An attorney for Hambali did not respond to requests for comment. But Connell said it was almost certain that the legal team will make torture central to Hambali’s war-crimes trial.
“It’s clear that the Hambali case presents similar issues of torture that the Nashiri and 9/11 cases present,” Connell said.
Yet six months into the administration, the Hambali military commission is the first concrete move Trump has taken on Guantanamo Bay. However much Trump and the GOP despised Obama’s failed effort to close Guantanamo, the detention center’s default trajectory remains—at least for now—the one Obama set with the Pentagon: no new detainees.
Trump boasted on the campaign trail of loading Guantanamo up with “bad dudes.” But within the government, re-filling Guantanamo – current population: 41 – carries its own problems. An executive order intended to formally revoke Obama’s 2009 move to shutter the detention facility has stalled. According to the administration official, as recently as this spring, officials from across the national-security agencies have warned the White House that taking on new detainees at Guantanamo will make the U.S. responsible for them effectively forever – something Obama learned to his dismay when many foreign partners and allies balked at resettling Guantanamo residents.
“The government is tying its own hands and the White House seems not to realize that,” the official said, “despite clearly articulated concerns from across the interagency highlighting the pitfalls and challenges, legal and diplomatic, with increasing the detainee population at Guantanamo.”
Hambali’s potential war-crimes trial has been in the works for years. An Obama task force recommended him for prosecution in 2010, and as recently as 2015, the commissions’ chief prosecutor considered Hambali a candidate for a military tribunal. Indonesia doesn’t want him back. And the first Guantanamo detainee to cut a deal in exchange for testimony, Majid Khan, has admitted to delivering $50,000 for a 2003 bombing in a Jakarta Marriott hotel, which Hambali is accused of directing.
Or at least, the Miami Herald reports that Hambali is charged in connection with the Jakarta attack, as well as a 2002 Bali luxury-hotel attack that killed 202 people, including seven Americans. The Herald, which was first to report Hambali’s military commission, has seen Hambali’s charge sheet, unlike the public. The charges have yet to be posted to the military commissions website, something that prompted former Pentagon officials to fear a step backwards on transparency.
Representatives for the commissions’ prosecution and the Pentagon did not respond to requests for comment.
But Trump and Defense Secretary James Mattis’ decision to launch a new military tribunal “tells me the administration believes the military commissions are here to stay,” said commissions attorney Connell. “They’re not an act of emergency, they’re intended to become part of the legal landscape of the United States.”