Exhibit A of the Guantanamo Failure Resumes This Week

This is a cross-post from The Huffington Post.

As the United States considers engaging in yet another war, with the start of air strikes Friday in Iraq, let’s not forget we’re still stuck with the remnants of an old one. The U.S. still has some 32,000 troops fighting in Afghanistan, though we don’t hear much about them these days. And we still have a military detention center in Cuba where we hold 154 prisoners from that war, which has now dragged on more than 12 years.

A recent Newsweek headline called Guantanamo a “Stunningly Expensive Failure.” Kurt Eichenwald documents how the detention center has become part of conservatives’ “macho preening” despite its waste of hundreds of millions of dollars in the hopes of duping the American public into thinking it would bring us more security.

The military commissions may be the worse example of that. Responding to irrational cries that these terrorists are too dangerous to bring to the United States for trial, there are now just a handful of Guantanamo prisoners — seven, to be exact — receiving hearings aimed at an eventual war crimes trial, which may possibly happen at some point in the coming years. Over the last 12 years the military commissions have completed eight cases, with two convictions overturned on appeal. By contrast, there have been some 500 terrorism-related convictions in federal courts since 9/11.

Even the five men accused of masterminding the fateful September 11 terrorist attacks on the United States that kicked of this endless “war on terror” still haven’t been brought to justice.

This week, I’ll be watching another set of pre-trial hearings in their military commission case. As with all the hearings so far, this one promises another morass of procedural wrangling — this time, over whether the government is going to run through two separate 9/11 trials, presenting much of the same evidence and repeating much of the same testimony, or just one. There’s military efficiency for you.

Last month, the judge presiding over the 9/11 case, Colonel James Pohl, decided on his own that he would hold a separate trial for one of the defendants, Ramzi bin al Shibh, who is accused of acting as an intermediary for the 9/11 hijackers from Germany. Although severing a trial, as it’s called, is sometimes appropriate if there’s a conflict of interest among the defendants — for example, if one of the accused is going to blame the other for the crime — that’s not the case here. These men have all previously proclaimed their guilt. Instead, Judge Pohl decided that bin al Shibh’s case was going to be a little more confusing than the others, because 1) he claims he hears noises in his cell that prison guards deny they’re making, so the government is questioning his mental competency; and 2) the judge has to figure out whether the FBI, which admits it spied on bin al Shibh’s defense team, has so screwed up his case that he’ll need an entirely new defense team to prevent a conflict of interest going forward. That’s all going to take some time.

Judge Pohl decided, therefore, although neither side requested it, that bin al Shibh’s case should be tried separately, so that at least the case of the other four defendants can go forward while those two issues are worked out. This is all because of “the right to a speedy trial” for the accused, he wrote in an earlier order.

Nearly 13 years after the September 11 attacks, it seems a little late to be talking about the right to a speedy trial. These accused were held in CIA black sites, some of them tortured, for several years before they were even transferred to Guantanamo Bay, where they’ve been for the last eight years or so. No one in the U.S. government seemed particularly concerned about a speedy trial then.

In fact, this case could and should have been brought years ago in a U.S. federal court, which is what President Obama originally wanted to do when he took office. He wavered, and Congress has since slapped a ban on transferring any defendants from Guantanamo to the U.S. for trial. The rights of the accused seem hardly at the top of anyone’s list of concerns here.

But even if the rights of the accused are a legitimate issue now, isn’t that a right for the defendants themselves to raise? In fact, neither the defense nor the prosecution has asked the judge to try bin al Shibh separately so the other cases can go forward. Given that this is a death penalty case, that’s not surprising. And given how many appeals there will surely be of a guilty verdict, no matter what, we won’t see the end of this case for many many years to come.

Severing the case now into two separate trials has serious consequences. It means that not only would the government have to present its prosecution against four of the alleged masterminds of the attacks first, but it would then have to re-present much of the same evidence and testimony all over again, to a second jury and before another judge, to bring its case against bin al Shibh.

The cost of the military commissions, which require flying teams of lawyers, media, observers, 9/11 family members and judges to and from Guantanamo for every hearing, and housing them on the base, is astounding, and totally unnecessary. To expand what may be the most costly trial in American history into two incredibly costly trials seems like a colossal waste of money. Already, the government spends more than $2.8 million per detainee each year to support their stay at Guantanamo. Meanwhile, it costs about $35,000 to hold a prisoner in a high-security U.S. prison.

As Kurt Eichenwald notes, the costs of Guantanamo are only expected to mount, due to a crumbling base infrastructure and the extra health care costs of an aging detainee population.

Judge Pohl’s intent, to proceed as rapidly as possible with whatever trial he can pull off, is understandable, given the frustrations everyone participating in this military commission trial has endured. But take a larger view, and it makes no sense. Unless the accused men themselves are claiming a conflict of interest, the government shouldn’t waste more time and energy and huge amounts of taxpayer money trying any of them separately. The efficient way to proceed now is to try them together, in a real U.S. federal court. That’s also the only way we’ll ever see justice truly done, not only for the five defendants but for all of us.

It remains to be seen how involved the U.S. will get in this latest war in Iraq, and the price tag that will come with it. But the uncertainties of costly new wars makes it even more important that we clean up the mess of the old one.

Guantanamo should be the first thing to go.


Published on August 11, 2014


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