End 22 Years Of Injustice

Former Military Commissions Prosecutor Calls for the Closure of Guantánamo

"Camp Justice" at Guantánamo, home to the broken military commission trial system.

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By Andy Worthington, July 6, 2021

Since Joe Biden was inaugurated as president in January, there has been a considerable outpouring of high-level demands for the closure of the shameful and disgraceful prison at Guantánamo Bay, which marked the 19th anniversary of its opening just before Biden’s inauguration, as the fatigue of the Trump years, when the White House was occupied by a president with no interest in addressing the horrors of Guantánamo, came to an end.

In January, seven former prisoners (all authors) had a letter published in the New York Review of Books calling for the prison’s closure, followed in February by a letter from 111 human rights organizations, including Close Guantánamo. Most significantly, in April, 24 Democratic Senators, including Dick Durbin, Patrick Leahy and Dianne Feinstein, followed up with their own demand for the prison’s closure, including detailed explanations of how that is possible.

There have also been op-eds by former Bill Clinton advisor Anthony Lake and Close Guantánamo co-founder Tom Wilner, by Lee Wolosky, the former Special Envoy for Guantánamo Closure, by retired Rear Admirals Donald J. Guter and John Hutson, by former CIA analyst Gail Helt, by Valerie Lucznikowska of September 11 Families for Peaceful Tomorrows, and by the attorney Benjamin R. Farley, who represents one of the men accused of involvement in the 9/11 attacks, as part of the DoD’s Military Commissions Defense Organization.

Last week, Omar Ashmawy, a former prosecutor in the military commissions, set up after 9/11 specifically to prosecute a handful of the nearly 800 men held without charge or trial at Guantánamo over the last 19 years, made his own contribution via an op-ed in the Washington Post, which we’re cross-posting below.

Ashmawy’s op-ed begins with a shocking insight into quite how long Guantánamo has been open, and how elusive justice has been. He was, he explains, "one of the prosecutors for the only two litigated U.S. military tribunals since Nuremberg" — the trials 13 years ago, in 2008, of Salim Hamdan, a driver for Osama bin Laden, who was released five months later, and Ali Hamza al-Bahlul, who made promotional videos for al-Qaeda, and was given a life sentence after refusing to mount a defense.

Prior to these trials, one prisoner (David Hicks) negotiated a plea deal, and since then five other cases have proceeded to trial (of Ibrahim al-Qosi, Omar Khadr, Noor Uthman Muhammed, Ahmed al-Darbi and Majid Khan), and have also involved plea deals. However, the last of these was nearly ten years ago, and many of them have been overturned on appeal, on the basis that, as Ashmawy explains, they involved "charging ex-post facto crimes such as 'material support for terrorism' that didn’t exist before 9/11, in violation of the U.S. Constitution."

Ashmawy describes how "drag[ging] the judicial process out for this long — up to nearly 20 years — is absurd and un-American," and also explains that, during his service, from 2007 to 2009, his entire experience of the commissions confirmed only that it was an irreparably broken system. He calls on President Biden to end this long betrayal of justice by bringing those charged with crimes to face federal court trials on the U.S. mainland, and to bring the very existence of the prison at Guantánamo Bay to an end by releasing everyone else.

As he states, "Guantánamo was designed to bypass the Constitution and the U.S. criminal justice system. It failed because that idea is contrary to American principles." As he also explains, "If we can bring home our troops from Afghanistan by September 2021, we can close Guantánamo by then as well. We must."

I was a prosecutor at Guantánamo. Close the prison now.
By Omar Ashmawy, Washington Post, June 30, 2021

I was one of the prosecutors for the only two litigated U.S. military tribunals since Nuremberg. These were the trials of Salim Ahmed Hamdan and Ali Hamza al-Bahlul, who were among those detained at Guantánamo Bay Naval Base after the attacks of 9/11. While it’s been 12 years since I served in Guantánamo, and the number of detainees has dropped dramatically, the realities that must be faced for trials to proceed haven’t changed. Military tribunals are sometimes a necessary consequence of war, but to drag the judicial process out for this long — up to nearly 20 years — is absurd and un-American. It’s an abandonment of our commitment to rule of law and what we consider to be fair jurisprudence.

My entire experience at Guantánamo was a rude awakening. I believed in the system after the first failed effort at prosecuting alleged terrorists was repaired in the Supreme Court case Hamdan v. Rumsfeld, where the court acknowledged the unconstitutionality of the process. I thought our pursuit of justice could be fair and impartial, and an example to the world. I was wrong. Everything I saw and experienced while serving in that assignment convinced me of that. Nothing I’ve observed since has changed my mind.

For years, leaders across the political, legal and humanitarian spectrum have called for the prison at Guantánamo to be closed. Thus far, the Biden administration has paid only lip service to that idea, except for clearing the potential release of three detainees who are still in custody. Without a comprehensive plan for trying the others — or, the more politically difficult alternative, releasing many of them without trial — closing the facility is impossible. Practically, this would mean coming to terms with the crimes the United States has committed: torture, extraordinary rendition and indefinite, illegal confinement — all of which are antithetical to our concepts of justice and international norms. Can you imagine the outrage if an American were snatched off the streets of Cancún, Mexico, accused of crimes, tortured until they confessed and held for more than 10 years without trial? It would be an act of war.

Except for U.S. v. Hamdan and the case against Bahlul, we have been unable to successfully litigate a tribunal since Sept. 11, 2001. Two decades of failed efforts speak for itself — no tribunal held in Guantánamo after nearly 20 years of unlawful confinement could come to a conclusion that the legal or humanitarian community will accept. The recent ruling in U.S. v. Nashiri — saying a jury can’t hear evidence derived from torture, but the same evidence can be introduced to bring an accused person to trial — is too little too late; it’s a Band-Aid that only accentuates the failures of the process.

As an American, a former military officer and an attorney, I am disgusted by what I witnessed during the George W. Bush presidency and continued to observe over the next two administrations. A short list includes the lack of transparency; the fiscally irresponsible cost of maintaining the prison; the intelligence community’s continued lack of cooperation; the palpable anti-Arab, anti-Muslim sentiment; and charging ex-post facto crimes such as "material support for terrorism" that didn’t exist before 9/11, in violation of the U.S. Constitution.

Legally, the answer is as simple as it is politically difficult. Of the original approximately 780 original detainees, 40 remain — almost all of whom have been detained for 15 years or more — and only seven are facing a military trial. Some prominent voices are calling for the immediate release of the 28 prisoners who have yet to be charged with any crime. That should be done, but it does not go far enough. We should bring the individuals who can be tried to the United States for prosecution in federal courts. Release the rest. Yes, there will be recidivism, but we must address that on the battlefield, not by continuing to abandon our judicial standards of right and wrong.

To those who fear bringing committed terrorists to prisons on U.S. territory: They are already here. To those who think civilian federal courts can’t handle crimes of international terror: They already have — almost 1,000 cases of international terrorism have been prosecuted by the Justice Department since 9/11, with an 84 percent record of conviction.

Guantánamo was designed to bypass the Constitution and the U.S. criminal justice system. It failed because that idea is contrary to American principles. Putting it more bluntly: When it comes to our foreign enemies, we must kill them or arrest and try them for their crimes. Anything else is a setup for failure. If this administration is committed to ending the forever wars of 9/11, it cannot do so without closing one of the last vestiges of them. If we can bring home our troops from Afghanistan by September 2021, we can close Guantánamo by then as well. We must.

Omar Ashmawy, staff director and chief counsel for the Office of Congressional Ethics, is a retired Air Force major who served as a war crimes prosecutor from 2007 to 2009.