Detainees at the U.S. military base at Guantanamo Bay, Cuba, have been on hunger strike since early this year. The strike began in February, with perhaps as few as 14 men participating; the number of participants grew over the following months and, as of July, 106 detainees out of the total prison population of 166 have joined the strike.[i] Of the men on hunger strike, 44 are being fed twice a day by Guantanamo authorities using a tube threaded through the nose and into the stomach.[ii] The strike led to clashes between detainees and guards this past spring, when the military moved detainees who had shared communal quarters into single-man cells—partly for the purpose of monitoring their health, according to a Guantanamo spokesman. The move was resisted by detainees allegedly wielding homemade weapons. This led guards to fire non-lethal ammunition at the detainees.[iii]
Searches of detainees’ Korans by Guantanamo authorities reportedly provoked the hunger strike. Observers, including both the U.S. military and detainees’ lawyers, say, however, that the underlying cause is the men’s frustration over their detention. One detainee lawyer explained the imprisoned men’s mental state: “They are ready to die because they don’t think they’re getting out of here.”[iv]
Such frustration is understandable given the uncertainty over the detainees’ ultimate fate. The Guantanamo base became a prison for alleged terrorists over 11 years ago, in January 2002. When President Obama was inaugurated in 2009, he inherited from President Bush’s administration 241 men who were imprisoned there, as well as a complicated history of legislation and court cases related to the detainees’ treatment.[v] The most important episode in this tangled history was a Supreme Court ruling made about six months before Obama took office, in the Boumediene v. Bush case. In that case, the Court ruled that detainees have a constitutional right to petition federal courts to evaluate their detention’s legality—that is, detainees have a constitutional right to habeas corpus.[vi]
Given this situation, President Obama issued an executive order shortly after taking office that called for a review of the detainees’ cases to determine which of them could be released or transferred, which of them could be prosecuted in civilian courts, and which of them required some other approach. The order also called for Guantanamo’s detention facilities to be closed by January, 2010.[vii] A few months after issuing this order, Obama announced that Guantanamo detainees would be, depending on each man’s specific circumstances, released, transferred to other countries, tried in civilian courts, or tried before military commissions. A select number of detainees, he announced, would have to be detained indefinitely without trial. This category of detainees the president characterized as “people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.” Obama was vague on why these men could not be put on trial, but he did say that in some cases the “evidence might be tainted.”[viii] According to one account, this refers to the fact that some detainees were tortured by American agents, making the resulting evidence inadmissible in court.[ix]
Although acceptance of indefinite detention without trial in certain cases was cause for concern for civil libertarians, some progress was subsequently made toward settling the detainees’ cases in Obama’s first term. Roughly 70 men were transferred back to their home countries or third-party countries.[x] Ahmed Ghailani, a Guantanamo detainee charged with involvement in the bombing of U.S. embassies in Africa in the 1990s, was convicted in a federal civilian court in 2010 and sentenced to life imprisonment.[xi] Nevertheless, the administration encountered significant setbacks. Efforts to try Guantanamo’s most infamous detainee, Khalid Shaikh Mohammad—the alleged mastermind of the 9/11 attacks—in federal court eventually ground to a halt and Mohammed’s case was referred to a military commission. Habeas petitions to the courts as the result of the Boumediene decision have not led to any detainees being freed—the judicial system has so far upheld their detentions.[xii] Congress passed successively narrower restrictions on transferring detainees to the United States, ultimately barring even their prosecution here.[xiii] Above all, the Guantanamo detention facilities remain open.
President Obama’s recent speech at National Defense University indicates he still wishes to close the Guantanamo prison and release, transfer, or prosecute detainees in the way outlined in 2009 (in the speech, he also referred again to detainees who could not be prosecuted “because the evidence against them has been compromised or is inadmissible in a court of law”).[xiv] With the president possibly renewing efforts to resolve the Guantanamo situation and the men detained there resorting to self-starvation, the political and legal battles over detaining alleged terrorists seem likely to drag on for years to come.
Trying the Accused
Criminals may be punished with imprisonment if they are found guilty of wrongdoing, but some reasonably fair process such as a trial needs to determine their guilt or innocence. If they are determined to be innocent of wrongdoing, they must not be punished, whether by imprisonment or any other method.
“Accused criminals” seems an accurate description of the men detained at Guantanamo. It is more appropriate than “prisoners of war” (POWs), simply because al Qaeda or similar groups cannot plausibly be considered legitimate combatants in the same way American soldiers or those of other nations can. Al Qaeda members’ transnational character, failure to distinguish themselves from the civilian populations in which they operate, and disregard for civilian immunity from attack make them closer to criminals than soldiers. If we regard detainees as accused criminals instead of POWs, they should be given civilian trials or similar hearings to determine if they are indeed guilty of terrorist attacks or other crimes.
Trials in civilian courts seem to be a better option for determining detainees’ guilt than military commissions. Trying accused criminals according to the possibly watered-down legal standards of military commissions risks unjustly convicting the innocent. Given that trials in the civilian criminal justice system are hardly flawless and have led—as death-penalty opponents are well aware—to people being convicted of crimes they did not commit, weakening civilian trials’ minimal guarantees of fairness seems very dangerous. Moreover, civilian trials have a proven track record of convicting accused terrorists, so opposing such trials for fear they will irresponsibly let terrorists go free is an overly extreme stance. In addition to Ahmed Ghailani, men such as Richard Reid and Umar Farouk Abdulmutallab, both of whom tried to blow up airplanes, and Faisal Shahzad, who attempted to bomb Times Square, have been convicted and received life sentences in civilian courts. The Obama administration should make an effort to give those detained at Guantanamo trials in civilian court that are as fair as possible. If, for political and other reasons (fear of revealing sensitive intelligence, for example), civilian trials are simply not an option for some detainees, those men should receive the fairest military trials possible, perhaps following the same rules as a court martial for a member of the U.S. armed forces. Even a flawed trial is better than no trial at all.
This principle of giving detainees a trial ideally should be applied to all the detainees, even those Obama has spoken of imprisoning without trial indefinitely. To be sure, this particular class of detainee presents policymakers with an agonizing choice: either permanently denying someone a trial or taking the risk that a dangerous terrorist will be acquitted for lack of legally admissible evidence. Neither is a desirable option. Nevertheless, an effort should be made to provide all detainees with at least some procedure to determine their guilt or innocence, in which they have the opportunity to defend themselves. The Ghailani case again offers a useful precedent: evidence against the accused terrorist was excluded by the court because it was obtained as a result of coercive methods, yet the government still won a conviction.[xv] Whatever shortcomings Ahmed Ghailani’s trial and sentencing might have had, they at least show that convicting an alleged terrorist in civilian court, even after evidence has been thrown out, is possible.
President Obama has inherited a terrible situation from his predecessor. Resolving the detainees’ situation and finally closing Guantanamo Bay’s detention facilities will not be easy. The situation has already dragged on for over a decade, though, and will not get any easier as more time passes. Action must be taken to give Guantanamo’s prisoners the trials they deserve.
i. Jane Sutton and David Alexander, “Guantanamo hunger strike stems from frustration: U.S. general,” Reuters, March 20, 2013; Carol Rosenberg, “Lawyers ask judges to halt Guantanamo forced-feedings,” Miami Herald, July 1, 2013, available at http://www.miamiherald.com/2013/07/01/3479715/lawyers-ask-federal-court-to-halt.html.
ii. Rosenberg, “Lawyers ask judges to halt Guantanamo forced-feedings.”
iii. Peter Finn, “Guantanamo Bay detainees and military clash; hunger strike continues,” Washington Post, April 13, 2013.
iv. Sutton and Alexander, “Guantanamo hunger strike stems from frustration: U.S. general”; Ryan Grim, “Gitmo hunger strikers vow to leave Cuba 'alive or in a box',” Huffington Post, April 1, 2013, http://www.huffingtonpost.com/2013/04/01/alive-or-in-a-box-gitmo-hunger-strikers_n_2995927.html?1364872247.
v. For an overview of the Guantanamo legal battles during the Bush years, see Peter Jan Honigsberg, Our Nation Unhinged: The Human Consequences of the War on Terror (Berkeley and Los Angeles: University of California Press, 2009).
vi. Honigsberg, Our Nation Unhinged, 87, 170-173.
vii. President Barack Obama, Executive Order: Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, January 22, 2009, available at http://www.whitehouse.gov/the-press-office/closure-guantanamo-detention-facilities.
viii. President Barack Obama, “Remarks by the President on National Security,” May 21, 2009, available at http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09.
ix. Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (New York: Houghton Mifflin, 2012), 130-137.
x. Charlie Savage, “Office working to close Guantánamo is shuttered,” New York Times, January 28, 2013.
xi. Peter Finn and Anne E. Kornblut, “Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility,” Washington Post, April 23, 2011.
xii. Robert Barnes, “Supreme Court declines Guantanamo detainee appeals,” Washington Post, June 11, 2012.
xiv. President Barack Obama, “Remarks by the President at the National Defense University,” May 24, 2013, available at http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09.
xv. Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (New Haven and London: Yale University Press, 2013), 363-364.