Since the prison at Guantánamo Bay opened in its “war on terror” iteration in 2002, there has been a tendency among liberal critics to hold it in stark relief to the “normal” civilian legal system. The cruelty and illegitimacy of Guantánamo Bay was contrasted against the inherent perceived legitimacy of U.S. courts and prisons. For as long as the detention center and the various tribunals have been around, it’s been common to hear arguments against them from human rights NGOs based on the efficacy and security of the civilian apparatus — the success rate of terrorism prosecutions, or the fact that no prisoner has ever escaped from a supermax prison.
There is no question that U.S. interrogators carried out unspeakable torture at Guantánamo Bay, that officials held prisoners incommunicado and without having been convicted of a crime, and operated for years with almost no oversight or visibility from outside watchdog groups. All of these elements are present in the normal American incarceration regime, a point that prison abolitionists and police have been making for the duration war on terror.
There has always been a fear that the abuses of Guantánamo Bay will migrate into the rest of the U.S. legal system. The reality is that many of them — including torture, indefinite pretrial detention and lack of oversight — have been there all along.
Ongoing plea negotiations in the 9/11 trial at Guantánamo Bay underscore just how outdated the conventional paradigm is. The five defendants in this trial are now in talks to resolve the capital punishment case. However, according to The New York Times, one of the key requirements from the defendants in the prior round of negotiations in 2017 was that they be able to serve their sentences at Guantánamo, “where they are able to eat and pray in groups.” They were reportedly adamant that they didn’t want to be sent to the supermax prison in Florence, Colorado, where, as the Times writes, “federal inmates are held in solitary confinement up to 23 hours a day.” In the current round of negotiations, the Times reports that the five defendants want “guarantees that, even after their convictions, they would be able to eat and pray communally,” though they aren’t “pressing for a particular venue.” The ongoing fear that they could wind up back in extreme isolation, whether they’re held in military or civilian custody, reveals the baseline cruelty that permeates all U.S. prisons and detention facilities.
Prison abolitionists won’t be surprised to learn that the five defendants are concerned about their treatment if they are transferred to a prison outside of the country. “Finding that prisoners would reject transfer to a U.S. federal prison in Colorado in favor of remaining where they are in Guantánamo isn’t shocking. While we understand how egregiously torturous conditions at Guantánamo are, all prisons are deadly,” Woods Ervin, media director at Critical Resistance, an international prison abolitionist organization, told TruthoutIn an emailed statement. “We shouldn’t imagine that other prisons are ‘more gentle,’ especially under conditions of solitary confinement. Prisoners will often insist that they are kept in conditions that allow them the opportunity to maintain their communities, collective practices and shared fights for freedom. The issue here is about prisoners making a collective, self-determined choice over the conditions they’re surviving under.” The conditions at the Florence supermax are horrific, even by U.S. standards. Incarcerated persons describeConcrete cells, including the bed, are used to house prisoners who are kept in isolation for 23 hours each day. A small cage is used for recreation. People in these conditions can go weeks without seeing the sky, highways, or any other reminders of the outside world. It’s not hard to understand why the 9/11 defendants would want to condition any negotiation on avoiding that kind of treatment, either in a federal prison or post-conviction at Guantanamo Bay.
James Connell, a lawyer for Ammar al Baluchi, confirmed that there were plea negotiations. The New York Times, in a statement posted to his defense team’s official Twitter account. “Negotiated agreements are part of all criminal cases, and negotiations have taken place throughout the case,” Connell said in the statement. “This process is not unusual: the vast majority of capital cases in the United States are resolved by plea.”
Alka Pradhan, a human rights lawyer who also represents al-Baluchi, said that the negotiations “represent one path to ending military commissions, stopping indefinite detention at Guantánamo Bay, and providing justice.” Military commissions are the novel legal apparatus in effect at Guantánamo Bay that combines military and civilian law. Pradhan and Connell declined to comment on this article.
The 9/11 trial at Guantánamo Bay is arguably in its most precarious state since the current iteration of the case began in 2012, when the five co-defendants were arraigned before a military judge. Col. James Pohl is no longer with us. He retired before the case could move beyond pretrial motions. Three judges succeeded him. A fourth candidate had to resign after being assigned the case, but before he could be on the bench.
The complications don’t stop there. Brig. Gen. Mark Martins has also been leftAfter clashes with Biden’s administration about the matter, the case was closed. applicability of international law at Guantánamo. Martins was also the de facto chief spokesperson of the military commission system. It has been plagued by complications ever since Congress created it in 2006. It was updated in 2009. For nearly a decade, the defense and prosecution have argued about the rules of that system — from the mechanics of compelling witnesses to a remote military base on occupied, foreign soil, to the applicability of the Bill of Rights in the proceedings. The hearings were dominated by the issue of torture evidence admissibility. It remains unresolved.
The entire trial was effectively stopped by COVID pandemic. 500 days.
There are still 38 men held at Guantánamo Bay, 10 of whom have been charged in the military commissions system. 19 of the remaining prisoners have been released for transfer to third-party countries if security conditions are met. Seven have not been charged with a crime, but also aren’t cleared for transfer — this group is often referred to as “forever prisoners.” Two have been convicted, including Majid Khan, who also took a plea. Khan was tortured in the same CIA program as Khalid Sheikh Mohammed, who is accused of being the 9/11 “mastermind.” Last year, a military jury — known as a panel — urged leniencyKhan was the first victim to CIA torture to be described in a courtroom during his sentencing. The Convening Authority was the highest sentencing official and approved a 10-year sentence. This meant that Khan’s term ended on March 1, this year. That doesn’t mean he’s free to go, however. The U.S. government reserves the right to continue to detain Guantánamo prisoners even after their time is served if a suitable third-party country hasn’t been identified. Khan’s lawyers are now callingfor him to immediately be transferred.
The response from the military panel to Khan’s treatment underlines the complications of bringing the 9/11 case to trial. Each defendant in that case was subject to torture by the CIA, including waterboarding. Recently disclosed legal filings revealed that Ammar al-Baluchi was used as a training tool: His torture was “on-the-job practice” for other interrogators. If the Khan case is any indication, this kind of treatment would greatly mitigate against a death sentence, even in a case like the 9/11 trial.
For as much reasonable worry as there is about Guantánamo Bay policies seeping into the civilian system, at least some of the torture enacted at Guantánamo in the early days of the war on terror was exported from U.S. prisons. Charles Graner, one of the few U.S. army soldiers held accountable for torture committed at Abu Ghraib in Iraq, “cut his teeth as first a guard / lieutenant at Pennsylvania’s max-security state prison, SCI-Greene,” Robert Saleem Holbrook, executive director of the Abolitionist Law Center, told TruthoutIn an emailed statement. “It was here that Graner routinely abused prisoners who were ‘in the hole’ (solitary confinement), just before he was activated for the reserves and sent to Iraq. I was confined in solitary (on a unit) with him. [Graner].”
“This is just one example of how the U.S.’s domestic torture within its solitary confinement units [is] exported as part of its so-called war on terror,” Saleem Holbrook added.
Many of the torture and abuses that the U.S. government has committed during the wars it has fought since 2001 have been ignored, forgotten or justifiable. This is evident in the image rehabilitation efforts of George W. Bush and Dick Cheney, as well as others who created the torture and kidnapping programmes. Many of the abuses that occur inside prison walls are also ignored. This is done to maintain an unjust system for social control. The ongoing plea negotiations in the 9/11 case are the most recent example of how blurred the lines between these systems are, and that it’s never clear that the damaging influence only travels one way. Those seeking to find justice by closing the prison at Guantánamo Bay should also ask whether justice is possible so long as any prison exists in the United States.