End 19 Years Of Injustice

On the 20th Anniversary of the 9/11 Attacks, the U.S. Needs to Close Guantánamo and Bring to an End the Broken Military Commission Trials

Razor wire at Guantánamo (Photo: Lucas Jackson/Reuters).

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By Andy Worthington, September 9, 2021

On the 20th anniversary of the terrorist attacks of September 11, 2001, the United States’ response to those attacks, both militarily and in terms of the law, couldn’t, in all honesty, have ended up more broken, unjust and embarrassing.

Having invaded Afghanistan a month after the attacks, the last U.S. troops withdrew last month, effectively conceding defeat to the Taliban, whose overthrow had been one of the two justifications for the invasion, the other being the destruction of Al-Qaeda, the organization allegedly responsible for the attacks.

In fact, the Taliban were quite swiftly defeated after the U.S.-led invasion, but, instead of withdrawing, U.S. forces stayed on, blundering around the country, largely unable to identify allies from enemies, and definitively losing "heart and minds" through repeated bombing raids, often based on poor intelligence, that killed an enormous number of Afghan civilians, and through imprisoning many thousands of Afghans in lawless and often brutal conditions at Bagram and Guantánamo.

Compounding these errors, the U.S. also made efforts to engage in nation-building, a policy with no proven track record of success, in which corruption was rife, and the supposed saviors of Afghanistan — the U.S.-trained Afghan army — were unable to stem the resurgence of the Taliban, whose return, ironically, was fueled by the U.S.’s failures.

As for Al-Qaeda, many of its leaders were killed, and the organization as a whole was largely driven out of Afghanistan, but those who were captured were, instead of being prosecuted for their alleged crimes in federal court, tortured in CIA "black sites" scattered around the world, or in proxy prisons run by notorious rights-abusing regimes in North Africa and the Middle East, before eventually ending up at Guantánamo, where the government then charged them in the military commission trial system it had dredged up from the history books, rather than in federal courts, which have a proven track record of dealing with terrorism-related cases.

The five men accused of involvement in the 9/11 attacks — including the alleged architect of the plans, Khalid Sheikh Mohammed — were first charged in 2008, under George W. Bush, but then had those charges withdrawn, as the Obama administration declared an intention to follow the federal court route. However, when that became politically contentious, Obama withdrew the proposal, and the men were charged again in the military commissions in 2012.

Since then, pre-trial hearings have been caught up in a humiliating 'Groundhog Day' of inaction, endlessly going round in circles as the defense teams point out that no fair trial can take place without the men’s torture being openly discussed, while prosecutors continue to do all in their power to obstruct it.

For the 20th anniversary of 9/11, someone with authority in the military thought it would make sense to schedule the latest hearings in the 9/11 trial to coincide with the anniversary, but in fact the scheduling of hearings — the 42nd, under the seventh judge to preside over them — only shines a spotlight on how the U.S. government has been unable to provide justice for those who lost family members on 9/11, and will continue to be unable to provide justice for an untold number of years into the future.

If Guantánamo is a graveyard of the law for the ten men currently charged with crimes — three of whom were arraigned just last week, 18 years since their capture, and despite their alleged crimes, none of which involved U.S. targets, having taken place in 2002 and 2003 — it is a also a legal graveyard for the 27 other men who have never been charged with a crime.

Approved for release but still held

Ten of those 27 have already been unanimously approved for release by high-level government review processes establish under President Obama, and their continued imprisonment ought to be a source of daily shame for the U.S. government. Three were approved for release in 2010 by the Guantánamo Review Task Force, which recommended 156 men for release, all of whom have been freed except for these three. Two of the men have apparently refused to engaged with the authorities regarding their release, and, many years ago, the third, Tawfiq al-Bihani, a Yemeni who grew up in Saudi Arabia and has family there, thought he was being released, but never made it onto the plane, for reasons that have never been adequately explained.

One other man, an Algerian, Sufyian Barhoumi, was approved for release in 2016 by a second, ongoing review process, the Periodic Review Boards; another, a Yemeni, was approved for release by a PRB towards the end of the Trump administration, and five others (two Pakistanis, including Guantánamo’s oldest prisoner, Saifullah Paracha, and three Yemenis) have been approved for release by PRBs under President Biden.

For Yemenis, getting out of Guantánamo has long been a problem, because the entire U.S. establishment has refused to contemplate their repatriation, blaming the security situation in their homeland, and third countries have had to be found that are prepared to offer them a new home. The resettlement of the Yemenis should be a priority for the Biden administration, and yet, nearly nine months since Biden took office, he has not yet revived the Office of the Special Envoy for Guantánamo Closure, in the State Department, which handled resettlement policy under Obama, but was then shut down by Donald Trump.

While negotiations for these men’s resettlement should take place as swiftly as possible, there is no cause for delay in the cases of Tawfiq al-Bihani, Sufyian Barhoumi, Saifullah Paracha and the other Pakistani, Abdul Rahim Ghulam Rabbani, and their release to Saudi Arabia, Algeria and Pakistan should already have taken place.

Sadly, the U.S. withdrawal from Afghanistan and the return of the Taliban has already empowered Republican supporters of Guantánamo to insinuate that it is not safe to release anyone from the prison, even though no Taliban prisoners are still held, and there is absolutely no basis for suggesting that the U.S.’s failure in Afghanistan has anything whatsoever to do with men still held at Guantánamo who have been unanimously approved for release by high-level government review processes, on the basis that it is safe to do so. It is, however, realistic to expect that the toxic nature of Guantánamo — which plays on nebulous fears rather than on anything remotely substantial — might make negotiations for the resettlement of prisoners slightly more complicated, but the U.S. should release who it can immediately, and work hard to secure the release of the other men as soon as possible.

"Forever prisoners"

As for the 17 other men, they have rightly been described as "forever prisoners," never charged with a crime, but regarded as too dangerous to release — there’s that atmosphere of "nebulous fear" again. Of course, the entire basis of holding men indefinitely without charge or trial is entirely shameful. Those regarded as soldiers should have been held as prisoners of war, according to the Geneva Conventions, while those who allegedly committed crimes involving terrorism should have been prosecuted in federal courts. Instead, throughout Guantánamo’s history, soldiers have been dressed up as terrorists, while terrorists have been allowed to portray themselves as soldiers.

With the U.S. withdrawal from Afghanistan, it might seem reasonable to assume that those who were seized in connection with the occupation, in its earliest days, ought now to be released, but instead the U.S. continues to claim that it can continue to hold these men because of their alleged connections to Al-Qaeda. A key culprit in this is the Civil Division of the Justice Department, where, regardless of who has been in the White House, attorneys have persistently refused to retreat from a position that any connection with Al-Qaeda, however tenuous (staying in an Al-Qaeda-affiliated safe house, for example) justifies life imprisonment without charge or trial at Guantánamo.

Of the 17 "forever prisoners," a handful were demonstrably nothing more than foot soldiers, fighting with the Taliban in an Arab brigade of soldiers, who have nevertheless been regarded as terrorists because of the brigade’s connections to Al-Qaeda. Two of these men, Moath al-Alwi and Khalid Qassim, revealed themselves to be capable artists when they were briefly allowed to express themselves at Guantánamo (al-Alwi made beautiful sailing ships out of recycled materials), and yet they continue to be held, ostensibly for their spurious Al-Qaeda connections, but in reality because, at Guantánamo, they have, at various times throughout their long and degrading imprisonment, fought back against the injustice, though hunger strikes, for example, or other forms of resistance.

Even beyond these cases, the continued imprisonment of other "forever prisoners" who allegedly held some sort of position within Al-Qaeda’s hierarchy — though not leadership roles — has become unjustifiable, as it is unlikely that, if charged, they would have received sentences in excess of what they have already served at Guantánamo.

In any case, what no one in authority seems to want to discuss on the 20th anniversary of the 9/11 attacks is whether the Al-Qaeda of 2001 continues to exist in any meaningful manner that justifies these men’s endless imprisonment.

It’s now over ten years since Osama bin Laden was killed by U.S. Special Forces in a raid on the compound in Pakistan where he had been hiding out since Al-Qaeda’s fall, and while offshoots of Al-Qaeda still exist, including between 400 and 600 fighters in Afghanistan, according to a U.N. report in 2020, the historic threat posed by Al-Qaeda has largely been replaced by the rise of ISIS (Daesh, the Islamic State), and the irony should not be lost on anyone that both the Taliban and what still exists of Al-Qaeda in Afghanistan are engaged in a struggle with an ISIS offshoot, ISIS-K (Islamic State Khorasan) that regards them as soft and old and not extreme enough.

20 years on from the 9/11 attacks, then, the continued existence of Guantánamo stands as a rebuke to U.S. notions of itself as a country that respects the rule of law. The U.S.’s attempts to prosecute those accused of involvement in the 9/11 attacks and other acts of terrorism are fatally tainted by torture, while its attempts to justify holding other, less significant prisoners indefinitely without charge or trial reek not of anything resembling justice, but of an enduring sense of vengeance, clung to by those who fail to understand how morally corrosive and unjust that is.