Babies Born on 9/11 Attain the Right to Vote Today but the 9/11 Accused Have Still Not Been Tried

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School, where he directs the Law and Armed Conflict Project.]

“I’m so glad we’ll never have to come back here again,” I stage whispered to my colleagues from Amnesty International, the ACLU and Human Rights Watch, as we watched the inauguration of Barack Obama on the CNN feed. We were eating lunch in the officer’s mess hall at Guantanamo. The military personnel surrounding us seemed oddly oblivious to the screen. Perhaps they weren’t all quite as excited about the new president as we were.

It was January 20, 2009, my second trip as Human Rights First’s International Legal Director to observe the Guantanamo Military Commissions. I assumed it would also be my last trip there because Obama had famously campaigned on closing America’s monument to torture and arbitrary detention.

Of course, I was wrong. The detention facility is still home to 40 so-called “enemy combatants” most of whom have not been charged with crimes. Their jailers are now in the eldercare business. Detainees who have been charged in connection with the 9/11 attacks are still awaiting trial, an unfathomable 18 years after the crime, in the dysfunctional and discredited Military Commission system that was designed to circumvent the US Constitution’s due process provisions.

The latest “judge” to be appointed to the 9/11 case recently set a trial date in early 2021. Nothing personal, but one of the earlier proceedings in these military commissions illustrates why there’s good reason to put the word “judge” in scare quotes. It was a hearing I attended in the early pre-trial stage of the 9/11 case, during which Kahlid Sheik Mohammed, the alleged mastermind of the 9/11 attacks, appeared without counsel. KSM (as he’s known in inner circles), was acting as his own lawyer at the time. After having endured long periods of torture in U.S. hands, his complaint that day seemed negligible. He said that guards would allow him to have only one piece of paper at a time and that they took a long time to take away one piece before giving him another. This practice was preventing him from effectively communicating with the “court” in his case. He asked that the guards be ordered not to restrict his access to writing materials necessary for him to represent himself. The “judge’s” response to the oral request was both absurd and stunning. He told KSM that since he chose to represent himself (a choice that courts always hate to have to deal with) he would be held to the same standard as a lawyer: if he had a request to make, it would have to be in writing. The irony of requiring the request for writing materials to be put in writing was apparently lost on the “judge.” But the reason he so ruled sheds light on why the military commission should not be considered a court, and why the judge should not be considered a judge.

We generally understand courts to be independent, with prosecutors representing the executive branch of government, and judges drawn from the judicial branch. This separation of powers is fundamental to the delivery of justice in a democratic, human rights-compliant society. In military commissions, on the other hand, the prosecutor, the judge, and the jury are all military personnel – all part of the executive branch. A real judge in a real courtroom can certainly issue orders relevant to the fairness of the proceedings to an accused’s jailers, but here, not so much. This distinction between real courts and military commissions begs the question: why does a rights-respecting democracy operate military commissions? The answer further highlights the illegitimacy of these proceedings.

Historically, military commissions were understood to be creatures of military necessity. In wartime, State A may come to occupy State B, and therefore, become responsible for its governance, including the administration of justice. If, due to the ravages of war, State B’s judicial infrastructure becomes inoperable (e.g., post-war Germany and Japan) it is the job of the occupying power’s military to fulfil the need. But when State B’s courts are open and operating, there is no “military necessity” to operate military commissions.

In the Guantanamo context, not only is there no military necessity, since U.S. criminal courts are open and operating, there isn’t even really a State B. It is now well know that the very reason detainees were taken to Guantanamo was to avoid the regular U.S. courts.

So what, if anything, did we accomplish by observing and publicizing the violations of domestic law, international law, and human decency that are the hallmarks of Guantanamo and its military commissions?  

First and foremost, our relentless focus on Guantanamo contributed to the evidentiary basis for the Senate Select Intelligence Committee’s gargantuan 2014 report, naming and delegitimizing the CIA’s post-9/11 policies and practices of secret, arbitrary detention and torture.  Second, note that despite its bluster about ‘loading Guantanamo up with bad dudes,’ the Trump administration has not transferred any new detainees there. Third, as part of our advocacy against the Guantanamo Military Commissions, Human Rights First prepared a widely distributed and oft-cited report, touting the sufficiency, indeed the superiority, of the federal courts and criminal justice system, to try terrorism suspects. Since then, hundreds of such suspects have been charged, tried, and mostly convicted in federal courts. True, many of those cases have featured entrapment by government stings, the use of compromised informants against vulnerable individuals who exhibited neither the means nor true intent to commit a terrorist act, and animus toward Muslims generally. But all of that’s another story. Meanwhile, no new suspects who were not already at Guantanamo were shunted into the kangaroo Military Commissions.

Many liberals and conservatives alike instinctively question the value of human rights law and advocacy, citing examples of gross violations and impunity enjoyed by violators. True, speaking truth to power did not lead to Dick Cheney and Donald Rumsfeld on perp walks in orange jumpsuits. But given what we’ve been up against, our work has contributed, impressively I think, to the restoration of law and human dignity in the fight against international terrorism. It’s not because we advocates were so uniquely qualified to achieve these results. It’s because despite all the terrorism the world has experienced, and all the bad counterterrorism the United States has perpetrated, the ideals and architecture of American justice, however flawed, are not yet dead. And so, it’s not too late to admit the failure of a military commission system conceived in the sins of torture and arbitrary detention, and for Congress to permit the transfer of the 9/11 cases to our federal courts. And it’s not too late to renew efforts to close this gulag before a generation of detainees needs hospice care.