It’s official: Eleven and a half years after the “war on terror” prison opened at Guantánamo, the maximum number of prisoners that the U.S. military intends to prosecute, or has already prosecuted, is 20 — or just 2.5 percent of the 779 men held at the prison since it opened in January 2002.
The news was announced on Monday, June 10, by Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions at Guantánamo, and it is a humiliating climb-down for the authorities.
Barack Obama appointed an interagency task force to review the cases of the remaining Guantánamo prisoners. The task force issued its report in January 2010 recommending that 36 of the remaining prisoners should be tried.
Just five of the 36 have since been to trial — one in the US, and four through plea deals in their military commissions at Guantánamo. Another man — Ali Hamza al-Bahlul — had already been tried and convicted, in the dying days of George W. Bush’s second term. Two others had been sent home after their trials — David Hicks after a plea deal in March 2007, and Salim Hamdan after a trial in July 2008 — making a total of 39 prosecutions, or intended prosecutions, after eleven and a half years of the prison’s existence. That was just 5 percent of the men held throughout Guantánamo’s history, but now that figure, which was, in itself, an extremely poor reflection on the efficacy of the prison and its relationship to any acceptable notions of justice, has been halved.
As Reuters described it, General Martins explained that the number set by the task force was “ambitious” in light of two rulings last October and in January this year by judges in the court of appeals in Washington, D.C.
The first ruling, which I covered in my article “Conservative Judges Demolish the False Legitimacy of Guantánamo’s Terror Trials,” involved Salim Hamdan, one of several drivers for Osama bin Laden, who took the job because he needed work and who received a five-and-a-half-year sentence for providing material support for terrorism.
As the judges stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”
Hamdan’s judge included time served since he was first charged when sentencing him, so he was freed just five months later, but in January this year another ruling by the appeal court further undermined the commissions.
This second ruling involved Ali Hamza al-Bahlul, a Yemeni who is still held and who had made a promotional video for al-Qaeda. As noted above, al-Bahlul received a life sentence in November 2008, after a brief and one-sided trial in which he refused to mount a defense. He was convicted for providing material support for terrorism, conspiracy, and another charge, solicitation, but when the Court of Appeals vacated his conviction, the judges cited a supplemental brief filed by the government, advising the court that it took the “position that Hamdan requires reversal of Bahlul’s convictions by military commission.”
That second ruling is currently on appeal with the Supreme Court. While it is uncertain why the government appealed, having previously backed down, the Hamdan decision alone has led to what Reuters described as the “drastic scaling back of the Guantánamo prosecutions” announced by General Martins.
As Reuters also described it, General Martins said that the Hamdan ruling “dissuaded prosecutors from pursuing cases against other prisoners they had considered charging with providing material support to al-Qaeda.”
General Martins also made it clear that the total of 20 men includes the 7 men who have been tried or have reached plea deals in their military commissions, and 6 others facing pre-trial hearings this week and next. It also seems to include Ahmed Khalfan Ghailani, the only man to be transferred to the U.S. mainland to face a trial, before Congress imposed restrictions preventing it, who was tried and convicted and received a life sentence in January 2011 for his role in the 1998 African Embassy bombings.
However, with the convictions of Salim Hamdan and Ali al-Bahlul overturned, even that figure of 20 looks optimistic, casting doubts on how secure the plea deals are in the cases of the other men except Ahmed Khalfan Ghailani (who, just to reiterate, was the only one successfully prosecuted in a federal court) — David Hicks and Ibrahim al-Qosi (both freed), Omar Khadr (repatriated to further imprisonment in Canada), and Noor Uthman Muhammed and Majid Khan, who are both still held.
Furthermore, while the six men facing pre-trial hearings are known — Khalid Sheikh Mohammed and four others accused of involvement with the 9/11 attacks, and Abd al-Rahim al-Nashiri, accused of involvement with the bombing of the USS Cole in 2000 — it is by no means certain that a case can be made against seven others.
One already charged is Ahmed al-Darbi, a Saudi accused of plotting terrorist attacks, who was seized in Azerbaijan and tortured in CIA “black sites” before being sent to Guantánamo. Another, as General Martins explained on Monday, is Abd al-Hadi al-Iraqi, one of the last prisoners to arrive at Guantánamo, in 2007.
According to the Pentagon’s press release, al-Hadi was “a senior member of al-Qaeda,” who “conspired with and led others in a series of perfidious attacks and related offenses in Afghanistan from 2001 to 2004.” The DoD also explained,
“Perfidy” is an offense triable by military commission in which those who are the targets of attack are killed, injured, or captured after the attackers have “[invited] the confidence or belief … that [the attackers] were entitled to … protection under the laws of war.”
Whether “perfidy” survives as a viable charge remains to be seen, although it is likely that it will take many years before any trial begins.
As for the others to be charged, Reuters noted that General Martins “did not identify the handful of other prisoners he still wanted to charge but said he would concentrate on those linked to the most serious crimes.”
The Hamdan ruling ought to make sure that the various insignificant prisoners charged over the years — including a number of Afghans — are no longer charged, and it ought to increase the pressure on the Obama administration to make sure that these men receive reviews of their cases to explain why they should still be held.
Reviews are also needed for the 46 men who were designated for indefinite detention without charge or trial by Obama in an executive order in March 2011, following the recommendations made by his task force, which concluded that they were too dangerous to release. The task force said that the information used to decide that could not be used in a trial. At the time, the president promised periodic reviews of the men’s cases, but those reviews have not yet materialized.
That means, of course, that the supposed evidence is fundamentally untrustworthy, produced through the use of torture or other forms of coercion, or consisting of intelligence reports regarded by the authorities as accurate, even though they may not be reliable at all. As that is a problem that permeates the Guantánamo prisoners’ cases like the poison it is, it is hard to see how General Martins has located four other men to be tried, but there are 15 “high-value detainees” in Guantánamo. While six of them are in pre-trial hearings, one has just been charged, one reached a plea deal last year, and one was convicted in New York, that does leave six to choose from.
The question, therefore, might be: whose torture is so severe that no trial is possible under any circumstances? I think that one answer is Abu Zubaydah, the guinea pig for the Bush administration’s entire “high-value detainee program” of “black sites” and torture, who was never part of al-Qaeda, as the Bush administration initially alleged, and whose health is so ruined by his torture that he regularly has seizures.
Then again, the authorities are not renowned for being able to ascertain the significance — or the lack of it — of the prisoners in their custody at Guantánamo, so it may be that even Abu Zubaydah will one day be wheeled out to face the shambolic proceedings that pass for trials at Guantánamo.
In the meantime, though, as 86 cleared prisoners at Guantánamo await release, I think it is important that, of the 80 other men still held, 65 others — the 46 designated for indefinite detention, plus 19 others recommended for trials, but who will not be tried, according to Brig. Gen. Martins — deserve to be told why they too should continue to be held.