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Magazine / Cover Story

The Prisoners’ Dilemma

Bowing to political reality, the Obama administration has abandoned its plans to close the detention facility at Guantanamo Bay. Surprisingly, many legal experts think that’s a very good decision.

Never mind: Guantanamo is open for business two years after President Obama said it would be closed within a year.(John Moore/Getty Images)

photo of Yochi J. Dreazen
March 3, 2011

GUANTANAMO BAY NAVAL BASE, Cuba—On a rainy morning in late February, Navy personnel escorted Noor Uthman Muhammed, accused of terrorism, into a heavily fortified military courtroom here. Muhammed’s civilian defense attorney, a prominent corporate lawyer named Howard Cabot, walked over to his client to say hello. A few minutes later, Navy Capt. Moira Modzelewski, the judge hearing Muhammed’s case, strode into the courtroom. Everyone stood, including Muhammed, a slight Sudanese man who has been held at Guantanamo Bay since he was captured in Pakistan nine years ago. “Good morning, everyone,” Modzelewski said from the dais at the front of the windowless one-story building. “This military commission is called to order.”

Those are seven words that the Obama administration once hoped would never be spoken again. Then-Sen. Barack Obama voted against the Military Commissions Act of 2006, which was designed to give formal sanction to such proceedings. During the 2008 election campaign, candidate Obama regularly denounced the existence of this detention facility and vowed to close it if elected president. Shortly after taking office, President Obama issued executive orders requiring an immediate case review for each of the detainees still held at Guantanamo Bay and formally declaring that the camp would “be closed as soon as practicable, and no later than one year from the date of this order.”

More than two years later, the Guantanamo Bay prison remains open for business, and administration officials have publicly conceded that the government will continue to use the facility well into the future. Speaking to the Senate Intelligence Committee in February, CIA Director Leon Panetta said that fugitive Qaida leaders Osama bin Laden and Ayman al-Zawahiri would be taken “to Guantanamo” if they were captured alive. Defense Secretary Robert Gates separately told lawmakers, “The prospects for closing Guantanamo, as best I can tell, are very, very low.”

 

In fact, the pace of activity at Guantanamo will sharply accelerate in the months ahead.

Gates issued a formal directive in early 2009 barring new military commission proceedings for any detainees except Muhammed and a handful of other “legacy cases.” Senior Defense officials told National Journal, however, that the secretary will lift the ban in coming days, paving the way for military prosecutors to proceed with cases against dozens of Guantanamo detainees. The government could bring initial charges against a handful of high-profile inmates within weeks, according to Navy Capt. David Iglesias, one of the lead prosecutors in the Pentagon’s Office of Military Commissions.

“We’re moving ahead and would be prepared to open new commission proceedings quickly if the stand-down order is lifted,” Iglesias said in an interview. “There wouldn’t be much lag time.”

 

“THE LEAST-WORST PLACE”

Perhaps the only thing more surprising than the Obama administration’s growing acceptance of Guantanamo Bay is the emerging consensus in legal circles that keeping the facility open—and holding new trials here—may well be the best available option for dealing with detainees from the ongoing war on terrorism.

A growing number of legal experts, including many who once advocated shuttering the facility, argue that procedural changes have made the military-tribunal process much fairer; it is now harder for prosecutors to introduce hearsay or evidence gathered from the brutal interrogation of other detainees. Analysts and advocates also point to a pivotal Supreme Court ruling in 2008 that gave Guantanamo detainees the right to challenge their continued incarceration before civilian judges.

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Politically speaking, legal experts say, the administration has almost no chance of persuading lawmakers to provide the necessary funding for closing Guantanamo. Legislation authorizing that spending failed to make it through Congress when the Democrats controlled both chambers, and the new Republican majority in the House is almost universally opposed to bringing Guantanamo’s 172 detainees to the U.S. mainland. Earlier this month, House Republicans also pushed through a bill that would specifically eliminate the salary of Daniel Fried, the career diplomat who is traveling the world trying to find countries willing to accept freed Guantanamo detainees.

We won’t be getting out of the detention business anytime soon.” —Benjamin Wittes, Brookings Institution

“Guantanamo Bay circa 2011 is not remotely the same as Guantanamo Bay circa 2002-2004,” said Robert Chesney, a law professor at the University of Texas who has written extensively about the detention facility. “In an ideal world, we’d close Guantanamo down because of all of the baggage associated with our prior mistakes there. But this isn’t an ideal world, and it’s not at all clear that there are any better solutions out there which have a realistic chance of being put into effect.”

Benjamin Wittes, a senior fellow at the Brookings Institution and the author of Detention and Denial: The Case for Candor After Guantanamo, noted that the U.S. will probably need to hold about 120 of Guantanamo’s detainees for the indefinite future, either because they are hardened militants who can’t be safely released or because—as is the case with the facility’s large population of Yemenis—they can’t be returned to their home countries for logistical or security reasons.

“When you’re talking about those kinds of numbers, a place like Guantanamo starts to look a lot better,” Wittes said in an interview. “It’s stable. It’s very professionally run at this point. And the truth is that we won’t be getting out of the detention business anytime soon.”

Wittes noted that former Defense Secretary Donald Rumsfeld once referred to Guantanamo as “the least-worst place” to hold detainees. “There was a lot of truth to that then,” Wittes says, “and there’s even more truth to it now.”

 

A LITTLE BIT OF SUBURBIA

The United States has maintained a naval base at Guantanamo Bay, on Cuba’s southeastern coast, since the early 1900s. The Navy leases the enormous facility—which extends over 45 square miles of land and water—for $4,085 a year. Washington has been dutifully writing a check in that amount, payable to the Cuban government, since 1934. But Cuban dictator Fidel Castro, who argues that the lease is illegal under international law, has cashed only one of the checks and keeps the rest stashed in a drawer in his Havana office.

Infographic

The detention facilities and courtrooms take up only a small portion of the sprawling base, which resembles an American suburb eerily transported to the middle of nowhere. A McDonald’s restaurant, complete with drive-through window, sits barely a mile from the courtroom where Muhammed’s trial was held. Guantanamo Bay has a golf course and an outdoor movie theater that shows films such as Tron: Legacy. The base, which houses about 2,600 troops and their families, also has O’Kelly’s, which bills itself as the only Irish pub on Cuban soil.

The U.S. began to send captured Qaida and Taliban militants to Guantanamo Bay in early 2002, shortly after President Bush announced his global war on terrorism. With no place to incarcerate prisoners in Afghanistan, where American forces had dislodged the Taliban, the White House decided that Guantanamo Bay’s remote location made it ideal for holding and interrogating detainees about possible future attacks. The base’s uncertain legal status was also a plus: Many Bush administration officials believed that the United States could hold detainees there indefinitely without giving them the right to challenge their confinement or even to know what crimes they were accused of committing.

The rest of the world, of course, came to see Gitmo very differently. Photographs of shackled detainees in black-out goggles and orange jumpsuits stunned many foreign leaders and prompted waves of calls to close the facility.

In 2004, the International Committee of the Red Cross sent to the Bush administration a confidential report concluding that the physical and psychological treatment of detainees at the hands of their military interrogators was “tantamount to torture.” At least five Guantanamo Bay detainees have killed themselves since 2002, and dozens of others have gone on hunger strikes. The prison’s medical facility stockpiles cans of the nutritional supplement Ensure—in chocolate, strawberry, and butter pecan—so that military doctors can forcibly feed detainees who refuse to eat.

By 2007, Bush and senior members of his administration were routinely speaking of their desire to close Guantanamo, which military and intelligence officials had come to acknowledge was a leading cause of anti-American sentiment throughout the Islamic world and one of al-Qaida’s most effective recruiting tools. During the 2008 campaign, Obama’s vow to shut the prison attracted virtually no Republican opposition for a very simple reason: The GOP nominee, Sen. John McCain of Arizona, had made the same promise.

After Obama’s election, a team led by the Pentagon’s top detainee official, Sandra Hodgkinson, was tasked with determining whether it would be possible to close Gitmo and move all detainees to military prisons in the U.S. A person familiar with the team’s work said that it examined four possible locations: the Navy brig in Charleston, S.C.; the Army prison at Fort Leavenworth, Kan.; the Marine Corps Base at Camp Pendleton, Calif.; and the Marine Corps Air Station at Miramar, Calif. The team concluded that the incoming administration could meet its 12-month deadline for closing the facility if work got started immediately. The Pentagon conveyed the findings to Obama and his national-security team. Shortly after taking office, the president issued the executive order officially promising to close the prison within a year.

A person who has read the Hodgkinson team’s report said, however, that it failed to adequately take into account the political and logistical challenges of closing the Guantanamo Bay detention facility. The group didn’t consider whether Congress was likely to provide the necessary funding to build a new prison, and it didn’t examine the sheer bureaucratic challenges of doing major construction on domestic military bases, a lengthy process that involves environmental-impact studies and other hurdles, this person said.

By the spring of 2009, the Obama administration was deeply involved in planning a secret effort to resettle a small number of Uighur detainees from Guantanamo in Northern Virginia. The Pentagon had concluded almost six years earlier that the Uighurs, Chinese Muslims locked in a fierce political dispute with Beijing, had no terrorist ties and could be released. But because they could not safely return home, they had been languishing at the detention facility ever since, a situation that the administration decided was unacceptable.

In late April of that year, Obama’s national-security team told the U.S. Marshals Service and the Homeland Security Department that the military would soon fly several of the Uighurs to the U.S. The plan was supposed to be kept secret, but Republican Rep. Frank Wolf, whose district is in Northern Virginia, heard about it and went ballistic. In a letter to Obama, Wolf argued that releasing the Uighurs would “directly threaten the security of the American people.” His letter was quickly picked up by Fox News and other conservative media outlets, which used it to argue that Obama was soft on terrorism. The planned flight never left Guantanamo, and the Uighurs are still here.

 

BOWING TO REALITY

The firestorm over the Uighurs marked the beginning of the end of the White House’s hopes of shuttering Guantanamo Bay. Opposition to Obama’s plan to move detainees to the U.S. grew steadily in the weeks after Wolf’s letter became public. On May 20, 2009, the Senate voted 90-6 to eliminate $80 million that had been budgeted for closing the detention facility. The House had stripped the funding from its own version of the spending bill less than a week earlier.

The Uighur controversy was a “turning point,” Wittes said.

“Until the Uighurs, the administration had the wind to its back. The executive orders were well received, and there was a sense of momentum behind the idea of closing Guantanamo,” he said. “But suddenly, you began to see Democratic opposition because of ‘not-in-my-backyard’ concerns and Republican opposition on ideological grounds. The administration started getting asked why they wanted to close down Guantanamo so badly, and they didn’t have a compelling answer.”

Military tribunals “are an affront to the Geneva Conventions.” —Raha Wala, Human Rights First

At the end of that year, the Democratic-controlled House effectively killed the administration’s last-ditch plan for a Guantanamo replacement. After months of scouting nonmilitary facilities, officials had settled on the nearly vacant Thomson Correctional Center in rural Illinois. The administration wanted to buy the maximum-security prison and upgrade its defenses so it could safely house Guantanamo’s detainees. But when the White House asked the House Appropriations Committee for $200 million to fund the project, the panel summarily rejected the request.

Opposition to closing Guantanamo has continued to build, in part because of other administration missteps. In November 2009, Attorney General Eric Holder announced that the U.S. would try Khalid Shaikh Mohammed, accused of masterminding the September 11 terrorist attacks, in federal District Court in New York City. Republicans cried foul, arguing that the extensive security measures required would paralyze the city and cost as much as to $1 billion. With public opinion running strongly against the idea, Obama aides have indicated that the president is virtually certain to eventually order that Mohammed be tried before a military tribunal.

 

DISSENTING VOICES

Still, the legal community is not unanimous in thinking that Guantanamo is the best place for trying suspected terrorists. Raha Wala is an expert with Human Rights First who has observed multiple commission hearings at Guantanamo. He believes that the military-tribunal system is “fundamentally flawed” and that federal criminal court would be a far better—and more effective—venue. Wala points out that civilian prosecutors can charge suspected militants with conspiracy, material support for terrorism, and a range of other related offenses. Military tribunals, by contrast, are typically reserved for serious violations of the laws of armed conflict. Conspiracy and material support for terrorism have never been considered war crimes, Wala says.

“Attempts to rewrite the laws of war now are not only an affront to the Geneva Conventions but also constitute ex post facto punishment (creating a crime to fit acts already committed), which is prohibited under international law and the U.S. Constitution,” he wrote in an e-mail.

Wala noted that civilian prosecutors have won more than 400 convictions for terrorism-related offenses since the September 11 attacks; the military-tribunal system at Guantanamo has convicted only six detainees, including Muhammed.

“The numbers speak for themselves,” Wala said while visiting Guantanamo last month.

Other legal experts say that the government should maintain Guantanamo Bay, just not in its current form. Eugene Sullivan, a former chief judge for the U.S. Court of Appeals for the Armed Forces, and former FBI Director Louis Freeh believe that the best solution would be for Congress to approve the creation of a new federal criminal court at Guantanamo; the government would fly civilian jurors in from the mainland for trials. Such a system, they contend, would give detainees access to the legal protections enshrined in the American judicial system while avoiding the disruptions and expenses that would come from holding terrorism trials in urban areas.

“You could give the detainees the benefit of a jury trial but do it in a safe, secure, and remote environment,” Sullivan said in an interview. “There’s no need to invent a new system of justice; the one we have can easily be adjusted to accommodate these kinds of cases.”

But some Guantanamo critics do want to invent an entirely new way of trying terrorism suspects. In 2008, Neal Katyal, then a Harvard law professor best known for winning the Supreme Court case that struck down the military-commission system, and Jack Goldsmith, an assistant attorney general in the George W. Bush administration, proposed creating a “national-security court” in which federal judges with lifetime tenure would rule on whether the government could detain a suspected terrorist without a formal conviction.

Detainees would have defense lawyers with top-level security clearances and would be able to periodically challenge their incarceration. But prosecutors would have more power than in existing civilian courts, including the ability to use some hearsay evidence and material gathered from interrogations that took place before a suspect was given a Miranda warning.

Katyal now serves as the Obama administration’s acting solicitor general, the government’s top lawyer. It’s not clear what his Justice Department and White House bosses think of the Katyal-Goldsmith proposal. Many close observers of the military-commission process doubt that such a court is likely.

Sullivan said he received “several calls from people connected to the White House.” He declined to detail whom he spoke to or how they responded to his proposal, however, and he acknowledged that the government shows no signs of moving toward creating a criminal court at Guantanamo.

Matthew Waxman, a Columbia law professor who was the first deputy assistant secretary of Defense for detainee affairs in 2004-05, said that the government probably won’t close or substantially alter Guantanamo in the near term. He noted that the Supreme Court decision giving detainees the right to challenge their incarceration effectively blessed the continued operation of the military-tribunal system; Congress has blocked all efforts to close the prison; and even the White House has been steadily backing away from the idea.

“One could say that we’ve reached a point where all three branches of the U.S. government have now essentially signed off on Guantanamo, despite the continuing public controversy about the camp and the massive political opposition to it,” Waxman said in an interview. “It’s easy to say, ‘Let’s close Guantanamo.’ It’s hard to come up with a good, viable alternative.”

 

GUILTY, GUILTY, GUILTY

For now, Guantanamo’s detention system remains largely unchanged. The U.S. has spent nearly $2 billion since 2002 on the detention system here. Most detainees live in communal housing where they have access to PlayStation 3 video-game systems and Arabic translations of the Harry Potter books and Don Quixote. On a recent visit, a reporter witnessed a pair of thick-bearded detainees watching a large flat-screen TV with their feet up on the table. Both men wore wireless headsets. The camp’s military physicians say that the most common injuries they see result from the detainees’ spirited soccer games.

Noor Uthman Muhammed is in fairly poor health, and it seems unlikely that he takes part in the marathon soccer matches. In mid-February, rights activist Wala was among a large contingent of journalists and advocates who flew to Guantanamo Bay aboard a military plane to observe what was expected to be a full military trial for the Sudanese inmate. Shortly after, however, military officials said that Muhammed had decided to plead guilty to a pair of terrorism-related charges, effectively short-circuiting the trial.

In the courtroom, Modzelewski asked Muhammed, frail in a loose-fitting white jumpsuit, if he understood the charges against him and was comfortable waiving his right to a full trial. Muhammed, whose leg was twitching beneath the wooden desk, quietly answered “na’am”—Arabic for “yes”—in response to each question.

“Your pleas of guilty are provident, and I accept them,” Modzelewski said.

The following morning, Modzelewski summoned a 15-person pool of officers from the Army, Navy, Air Force, and Marine Corps who had been summoned to decide how much longer Muhammed would remain in prison. Their backgrounds offered thumbnail sketches of the past decade of war. An Army officer who served in the violent Iraqi city of Samarrah talked about how his roommate was severely burned while trying to pull a wounded soldier out of a burning vehicle. An officer who served in South Korea spoke about a close friend who had been killed in the Pentagon on September 11. In a halting voice, he said he remained in contact with his friend’s daughter. “I still send her the occasional Christmas card, just to check in,” he said.

Muhammed’s military defense attorney asked Modzelewski to strike both officers from the jury, arguing that they had “implied bias” because each had close comrades who had been hurt or killed by al-Qaida, the organization that Muhammed had pleaded guilty to supporting. She did strike them. After a few hours of legal wrangling, nine jurors remained, and Muhammed’s military prosecutors began presenting their case.

Navy Lt. Cmdr. Arthur Gaston, one of the lead military prosecutors, said that Muhammed helped create a generation of terrorists during his four years at the Khalder training camp in eastern Afghanistan. Muhammed served as the camp’s deputy commander, Gaston said, teaching aspiring terrorists how to select targets and how to use weapons and explosives. He noted that Khalder produced prominent militants such as Ahmed Ressam, the so-called millennium bomber, who was convicted of trying to blow up Los Angeles International Airport on New Year’s Eve 1999; Zacarias Moussaoui, who was supposed to be the 20th hijacker on September 11; and Mohamed Rashad Daoud al-Owhali, a terrorist connected to al-Qaida’s 1998 attack on the U.S. Embassy in Kenya.

“Terrorists are not born—they are made,” Gaston told the jury. “And the accused in this case, Noor Uthman Muhammed, has made hundreds of them.”

Cabot, who has been working on the case pro bono for several years, began his defense by showing the courtroom an undated family photo of Muhammed as a young man in Sudan shortly before the deaths of his parents. Muhammed grew up as a destitute orphan, Cabot said, whose primary comfort came from his deepening Islamic faith. He acknowledged that Muhammed spent several years at Khalder but described him as a “low-level functionary” whose main duties were cooking, cleaning, and running errands. He stressed that Muhammed had never joined the Taliban or al-Qaida and was on his way home to Sudan when a joint team of Pakistani and CIA operatives captured him in a safe house in Pakistan.

“He’s not Osama bin Laden,” Cabot said. “He’s not the living embodiment of al-Qaida.”

Cabot’s defense did not sway the military jury. On February 19, they sentenced Muhammed, whose beard is flecked with gray and who is believed to be in his mid-40s, to 14 years of additional confinement at the prison. Fortunately for Muhammed, he won’t end up serving nearly that much time. His plea deal with the military prosecutors calls for him to spend only 34 more months at Guantanamo Bay, provided that he cooperates with the government when it brings charges against higher-ranking militants such as Abu Zubaydah, who is accused of providing direct operational support to al-Qaida.

After the trial, Cabot told reporters that Muhammed finally had “some certainty in his life” about when he would be able to leave Guantanamo Bay. If everything goes according to plan, the militant will be released in December 2013, more than 11 years after he was first brought to Cuba. The Guantanamo Bay prison will almost certainly remain long after Muhammed returns home to Sudan.

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