Guantánamo’s Charade of Justice

Last week, we learned that, only months into the job, the official in charge of the military courts system at Guantánamo Bay was stepping down, after judges ruled he had interfered in proceedings. The appointment of an interim replacement was the sixth change of leadership for the tribunals since 2003.

This is yet another setback for the military commissions, as they tackle two of their highest-profile cases: the joint trial of the chief planner of the 9/11 attacks, Khalid Shaikh Mohammed, and four alleged co-conspirators, and the trial of Abd al-Rahim al-Nashiri, accused in the bombing of the American destroyer Cole.

That’s not all. Besides the revolving door at the convening authority’s office, six military attorneys have served as chief prosecutor for these courts over the same period. (I was the third.)

Think about that for a moment. If a professional football team was on its seventh head coach and sixth quarterback in less than a dozen years, that team would almost certainly be a loser.

Daniel Zender
Daniel Zender

On Dec. 31, 2001, the venerable Washington lawyer Lloyd N. Cutler wrote an article in The Wall Street Journal titled “Lessons on Tribunals — From 1942.” Mr. Cutler, a young attorney at the Justice Department in the summer of 1942, served on the team that prosecuted the eight German saboteurs whom President Franklin D. Roosevelt ordered tried before a military commission following their capture on American soil.

While Mr. Cutler noted some shortcomings in the way the military commission had been conducted in 1942 and advised the Bush administration to avoid repeating those mistakes at Guantánamo Bay, he was generally optimistic that after a six-decade respite military commissions could be revived and used in a credible manner.

“But success will depend on the quality of the judges, the prosecutors and the defense lawyers, and their ability to show the world that justice is in fact being done,” he concluded. “In a very real sense, it is the American legal system, not just Al Qaeda’s leaders, that would be on trial.”

So how have Guantánamo’s tribunals performed, more than 13 years on?

Just six detainees have been both convicted and sentenced for war crimes in military commissions since President George W. Bush first authorized them in November 2001.

Charges against three were later dismissed, and five who were convicted were eventually transferred from Guantánamo. Thus we have a legal system where it is more advantageous to be found guilty of a war crime than never to be charged at all and remain imprisoned indefinitely.

About 85 percent of the 779 men ever held at Guantánamo are no longer there. Most left during the Bush administration. While the number of transfers has been much smaller under the Obama administration, the pace accelerated in the latter part of 2014.

Of the 122 men detained, nearly half have been cleared for transfer by unanimous votes of military, intelligence, law enforcement and diplomatic officials who determined that the detainees could not be prosecuted, posed no identifiable threat to the United States and did not need to remain in our custody. Nevertheless, 56 men cleared to leave still remain, at a cost of about $3 million a year per detainee.

As unfortunate as this waste of resources and damage to America’s reputation are, the greatest tragedy is the pain inflicted on the friends and families of the 9/11 and Cole victims. For them, justice has been endlessly delayed.

Rather than showing “the world that justice is in fact being done,” as Mr. Cutler wrote, Guantánamo has come to symbolize torture and indefinite detention, and its court system has been discredited as an opaque and dysfunctional process. The latest reshuffle of personnel will not alter this impression.

In November 2013, Attorney General Eric H. Holder Jr. admitted that, had the administration not given up on its plan to try the 9/11 case in federal court, Mr. Mohammed and his colleagues “would be on death row as we speak.” Mr. Holder blamed partisan politics for the revival of the military commissions.

In the 16 months since, those observations have received further validation. While Osama bin Laden’s son-in-law Sulaiman Abu Ghaith and the radical cleric Mostafa Kamel Mostafa, also known as Abu Hamza al-Masri, were convicted and sentenced to life in prison by federal courts, the tribunals at Guantánamo stumbled from one mishap to another.

We need to set politics aside and end this litany of failure. We have competent and credible federal courts that can provide justice — and finally a measure of closure for the thousands of our fellow citizens who have had to wait far too long.

Morris D. Davis, a retired Air Force colonel, was the chief prosecutor of the military commissions at Guantánamo Bay from September 2005 until October 2007.

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