The Never-Ending Guantánamo Trials
The U.S. military commissions in Guantánamo Bay, Cuba, were set up in 2001, and after 23 years they are the most elaborate and expensive exhibition of sadomasochism in legal history. They were designed to try terror suspects, but to date the commissions have convicted only eight of the 780 or so prisoners who have, at one point or another, been in their custody. The commissions have cost billions of dollars. They are such a procedural morass that convicting even those who are obviously guilty takes decades of legal bickering. If tedium were a war crime, all involved would have been executed years ago. Guantánamo is where you send a mass murderer if you want him to die of old age, while those prosecuting him drown in paperwork.
On Friday night, Secretary of Defense Lloyd Austin intervened to prolong this farce, in one of the most bizarre and inexplicable decisions since the commissions’ bizarre and inexplicable inception. By far the most prominent remaining Guantánamo prisoners are those accused of plotting the 9/11 attacks. Last week, 16 years after the first hearing in their case, three of the accused plotters, including the alleged mastermind, Khalid Sheikh Mohammed (known as KSM), agreed to plead guilty in exchange for prosecutors’ not seeking the death penalty. The deal had been reached after immense labor by the prosecution and defense, and the commission approved it. Austin overruled the approval, declaring that he would personally take authority for the case and, in effect, ordering the prosecution to go to trial and seek the death penalty. “In light of the significance of the decision to enter into pre-trial agreements,” he wrote, “responsibility for such a decision should rest with me.”
The prosecution did not make a deal that ruled out the death penalty because it felt kindly toward these three men, who, after all, have admitted to killing nearly 3,000 people in one day. The prosecution agreed to the deal because there is almost zero chance that the accused will be executed after a trial. The evidence is tainted by torture. And the process of actually bringing them to trial is laborious beyond belief—like climbing Mount Everest with crampons made of butter. Years have passed with no progress. Now the pointless and expensive standstill will resume.
“There will never be a trial in this case,” a former prosecutor in the 9/11 case told me, speaking anonymously because of a confidentiality agreement still in effect from his work on the commission. “The defense only wants delay, and any skilled defense attorney will be able to achieve it. Every issue will be relitigated forever.” He called the disarray left by Austin’s reversal “a fucking mess.”
Some delays have been due to the defense’s stalling, but many are because of reasonable questions about legal procedure. The commissions were built out of nothing, in extreme haste. How do they run? What do the accused wear? When does the court break for lunch? What evidence is fair game? In any preexisting civilian court, many of these questions would have been worked out long ago. In this one, every possible issue is a potential point of dispute to be worked out, argued, or considered afresh. Pretrial hearings in the 9/11 case have been going on for more than 13 years. The hearings take place at Guantánamo Bay Naval Base, which means that, whenever one is held, a planeload of lawyers and judges and journalists and support staff has to fly in from Andrews Air Force Base in Maryland. Selection of a panel to judge the men, before the now-nixed plea agreement that would have cleared the way for speedy conviction, would have begun in 2026. It might now begin, well, never.
[Daniel Benjamin and Steven Simon: New 9/11 evidence points to deep Saudi complicity]
But consider how far the case has come in those intervening years. The answer: absolutely nowhere. When the 9/11 defendants first appeared publicly at a hearing, way back in June 2008, they asked the judge to accept their guilty pleas unconditionally. They were demanding the same deal that Austin just canceled, only with a much worse possible outcome for themselves. They wanted to be executed, pronto. The court paused, as it should have, to consider whether their pleas were made wittingly and without coercion. The terrorists withdrew their pleas when they presumably saw an even more delightful prospect: the spectacle of America embarrassing itself, in a never-ending festival of bureaucracy and injustice. In the civilian world, many defendants find that the legal process itself is punishment, whether they’re convicted or not. These three men seem to have determined that the process is indeed punishment—not for them but for the prosecution.
For the accused, the sweetest punishment would be watching the United States squirm through a trial that included testimony about torture. KSM allegedly withstood 183 instances of waterboarding at a black site. The plea deal would likely have prevented a protracted trial, and would have made it unnecessary for the defendants to claim, at sentencing, that their punishment should be reduced due to torture. The deal would have ended the proceedings just as they were getting interesting for the accused. The mystery is not why the prosecutors offered the deal but why the defendants accepted it.
Terroristic mass murder is certainly worse than other crimes that merit the death penalty in America. (In Texas, a teenager can get lethal injection for killing an old man during a carjacking.) After the reversal, family members of 9/11 victims told The New York Times they are relieved to know that a full trial is still possible and that the defendants might yet face execution. “Otherwise, how could we be assured some administration would not commute their sentence or swap them in the future?” one asked. (Just a day before, the United States and Germany had sent an assassin back to his native Russia in exchange for innocent Americans and a few heroic Russian dissidents.) Other families take the opposite view: that Austin’s reversal eliminated their best chance to end the whole process in a timely and at least partly satisfactory manner. “We need to look at this objectively: This case is not working as is,” Elizabeth Miller told me. She was 6 when her firefighter father, Douglas, died in the South Tower. “Realistically, because of the torture, we are never going to see a trial. It’s going to end in plea agreements—or not at all.”
Anyone who lost a father or sister or son on 9/11 is entitled to rage, without limit. Some of that rage, though, should be reserved for those who doomed the terrorists’ prosecution. Waterboarding might have been enough to doom the case all by itself. But the whole architecture of the prosecution seems to have been enough to drive any prospect of justice into a legal cul-de-sac. In the early days of the military commissions, their advocates said that those accused were more like soldiers than civilians, and that military commissions would therefore be appropriate. Senator Lindsey Graham of South Carolina, who had previously served as a military judge, wrote in 2008 that “military judges and lawyers [would] render fair and impartial justice” to the accused, and the system would be “an intelligent balance of due process and national security.” No one could possibly agree with this assessment today, after many years have elapsed and KSM, now 59, is more likely to die of heart disease than by execution.
[Garrett M. Graff: After 9/11, the U.S. got almost everything wrong]
Finally, the families might spare some rage for Austin himself. In addition to revoking the plea deals, he fired the official in charge of the commission (known as the “convening authority”)—a strange move that flatly contradicts President Joe Biden’s own policy of trying to close down the Guantánamo prison. (As long as the commissions continue, the prison must remain.) Was Austin so clueless about the commission under his command that he did not know that a plea deal was imminent, and could not express his disapproval earlier and more subtly? The prospect of agreements had been raised repeatedly before. The New York Times reported yesterday that Austin was “surprised by” the convening authority’s decision to sign off on the deal and had not read it, because it was sealed. The secretary sounded blindsided, particularly as congressional Republicans condemned the agreement. “The shock that this [deal] was accepted by the convening authority shows a lack of dedication to the matter,” Miller, the daughter of the firefighter, told me. “If I were in Austin’s position, it would be something I’d want to be in the know about.”
It’s hard to read emotion in a military order, but the curtness and suddenness of Austin’s directive suggests a rage of his own, at an outcome where mass murderers might escape just punishment. Expressing his rage by taking over the commission, particularly after the announcement of a deal, could itself undermine the prosecution’s case. Just as justice in civilian courts depends on the independence of judges, the credibility of military courts depends on the independence of the official under whom the court operates. When someone high in the chain of command fires that official, apparently for the sole reason that the higher authority does not like an outcome she approved, that looks a lot like what military lawyers call “unlawful command influence”: the undermining of a military court by outsiders within the chain of command. The former prosecutor said Austin’s influence “puts the case in serious jeopardy.”
J. Wells Dixon of the Center for Constitutional Rights, who has represented other Guantánamo detainees, told me that he expects the defense to move for dismissal on this basis. “The general principle is that you can’t put your finger on the scales of justice,” Dixon said. “If Austin felt pressure from the White House, or pressure from legislators who have oversight [of the military], I think that would be fatal to the case.” He noted that the rules governing military commissions insulate a convening authority from influence and enumerate legitimate reasons for voiding a signed plea agreement. “None are ‘the agreement is politically toxic,’” he told me. He wonders whether prosecutors might resign as a result of Austin’s order. (Last week National Security Adviser Jake Sullivan insisted that the White House had no role in the initial deal. A Pentagon spokesperson told me that Austin “exercised his own judgment” in making the decision to revoke the deal but was “in touch” with the White House “as appropriate.”) Unlawful command influence is a doctrine not well tested in the context of the Guantánamo commissions. The motions for dismissal on these grounds might go nowhere. Even if the judge doesn’t dismiss the case, dueling briefs from the defense and prosecution will gobble up more time.
There is a way to clean up this mess. Now that Austin has assumed the power of the convening authority, he can restore the agreement he tore up on Friday—to reverse the reversal and bring these sordid proceedings to the end they were until recently already destined for. If he instead wants to extend the life of the commissions, slouching toward a trial that will never happen, then the pointless sacrifice of money and time will continue. For the families in search of finality, each minute of delay is a minute stolen, and for the defendants, each is a minute gained. The defendants have already cheated the hangman. The best way to end their run is to take that bitter deal, and bring these commissions to a well-deserved end.