Detained in Guantánamo

During the first weeks of his second term, President Trump signed into law the Laken Riley Act, which stipulates that undocumented immigrants arrested for violent crimes or theft should be held in custody before trial. As he did it, he made the startling announcement that a facility for detaining thirty thousand ‘criminal illegal aliens’ was to be constructed at the US naval base in Guantánamo Bay. ‘We’re going to send them to Guantánamo,’ he said. ‘It’s a tough place to get out.’ The first ten ‘high-threat illegal aliens’ arrived a few days later, in early February. Two hundred or so more followed. But by 13 March, they had all been sent back to the US. A federal judge is due to hear a lawsuit on the legality of detaining them outside the country. Left in Guantánamo were fifteen men suspected of terrorist offences, almost all of whom have been held there since 2006.

When I told people I was going to Guantánamo Bay last September to observe the trial of the 9/11 hijackers, I was met with bemusement. Even the lawyers I spoke to seemed surprised that there were still detainees at Guantánamo, and even more surprised to hear there was a trial going on. But to describe these judicial proceedings as a ‘trial’ is to fall into the obfuscation that typifies life at Guantánamo. It manifests in ways that are simultaneously comic and sinister. When we flew in from Andrews Air Force Base we were warned not to take photographs of the ‘golf balls’ or ‘windmills’ – the radar towers and installations on the hills surrounding the bay – although there are pages of pictures of them online. This is a world of selective omission and studied artifice. The court documents relating to the trial – tens of thousands of pages – are scored with blacked-out redactions.

The presence of outsiders at Guantánamo Bay is subject to the whim of the Defence Department. In 2010, four journalists were expelled for publishing the name of a witness who had given evidence under the cipher ‘Interrogator No. 1’, even though his anonymity was a legal fiction. His identity had long been established: in 2005 he underwent a public court-martial for the abuse of detainees and three years later gave an interview to a Canadian newspaper. Yet the journalists were banned from covering the military commission proceedings set up to try terrorism suspects. During my visit to Guantánamo, difficult questions were sidestepped or ignored, and requests to visit the detention sites countered with offers of a trip to Radio GTMO (‘Rockin’ in Fidel’s Backyard’) or to the gift shop to buy a Fidel Castro bobblehead. One of my colleagues, a Canadian lawyer, was barred from attending the court proceedings without any explanation.

To date, four judges have presided over the current proceedings relating to 9/11, which began at the start of Barack Obama’s second term in 2012. A first trial in 2008 foundered after the Supreme Court ruling in Boumediene v. Bush, which established that the Guantánamo prisoners had the right to challenge their detention in US federal courts. Although there is now no formal prohibition on habeas petitions, detainees face significant obstacles. When the case of Abu Zubaydah, who has been held at Guantánamo since 2006, came before the Supreme Court four years ago, Justice Breyer asked whether his lawyers had filed a habeas petition and was told that one had been filed in 2008, but that fourteen years on, the original judge had yet to rule on it.

The second trial has seen endless pretrial proceedings, mostly concerning the admissibility of confessions and other evidence gained through torture. The current judge, Matthew N. McCall, a US Air Force colonel, likes to reassure the attorneys that he’s ‘tracking’ the dizzying number of strands to the case. Sitting on the bench in his light blue uniform, he exudes a sense of calm. He was supposed to retire a year ago but hopes to see out the trial.

Four of the original five defendants remain. In August 2023, Ramzi bin al-Shibh was found unfit to stand trial after a board of review found that he was suffering from post-traumatic stress disorder and was delusional and psychotic. Last July, prosecutors announced that they had reached a deal with three of the remaining four defendants: Khalid Sheikh Mohammed, who is said to have come up with the idea of hijacking planes and flying them into buildings, and who was supposedly waterboarded 183 times in CIA black sites; Walid bin Attash, who helped to train the hijackers; and Mustafa al-Hawsawi, who is alleged to have provided financial and logistic support. The fourth defendant, Ammar al-Baluchi, Mohammed’s nephew, who is said to have helped with financing and travel arrangements, refused to plead guilty and was omitted from the deal.

Al-Hawsawi was held at a CIA black site in Afghanistan known as COBALT, or Salt Pit, in 2003, where he underwent ‘cold water dousing’ – a type of waterboarding – and forced rectal feeding, which left him with a rectal prolapse. Torture as an abstract legal concept is brought into sharp relief when you see the modified hospital chair provided for him in the custom-built courtroom, known as the Expeditionary Legal Complex. Al-Hawsawi is taking legal action against British intelligence agencies in the Investigatory Powers Tribunal (where he was represented by Richard Hermer KC before his appointment as attorney general), alleging that they were complicit in his torture.

In exchange for the men pleading guilty and agreeing not to bring any further appeals, the US agreed not to pursue the death penalty (Mohammed’s deal gives his minimum possible sentence as 2976 years and includes a lifetime gag order, preventing him from revealing details of CIA torture). The prosecutors said the deal was meant to bring ‘finality and justice’. It also forestalled an appeals process that, like everything else here, would almost certainly last for years. Even a sentencing hearing could take at least another year.

The Office of Military Commissions (OMC) was set up five weeks after 9/11. Its purpose was to enact President George W. Bush’s promise to direct ‘the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice’. Acting under the delegated authority of the secretary of defence, the OMC is empowered to detain and try those suspected of engaging in acts of international terrorism. It sits in the gap between domestic criminal law and international law, without the protections of the US constitution or the Geneva Conventions. It has been a signal failure: of the 780 men who have been held at Guantánamo, only two have been convicted. Six more have been charged and are awaiting trial (including the 9/11 defendants) and another six are being held without charge: their indefinite detention is deemed a ‘national security necessity’. Since October 2023, the OMC has been overseen by a retired brigadier general, Susan Escallier, who was responsible for signing off the plea deal.

Despite two years of painstaking negotiations, the deal was stalled as soon as it was made public. The White House released a statement saying it had ‘played no role in this process’. Three days later, Biden’s secretary of defence, Lloyd Austin, ordered the withdrawal of the plea deals and revoked Escallier’s oversight of the case. Austin decided that ‘in light of the significance of the decision … responsibility . . ;. should rest with me.’ This volte face threw the proceedings into disarray. Attorneys for the three defendants lodged an appeal against Austin’s decision. Meanwhile, the fourth defendant, al-Baluchi, continued pre-trial litigation aimed at excluding the confessions obtained after the men had been transferred from the CIA black sites. Fearful that taking part in this litigation would breach the terms of their now contested plea deal, the other three defendants were forced to rely on the arguments put forward by al-Baluchi’s legal team.

The future of the trial turns on whether the confessions made by the detainees are admissible as evidence. Broadly speaking, the interrogation of the 9/11 detainees took place in two phases. The first was conducted by the CIA in black sites scattered around the world. Interrogators were permitted to use what were euphemistically called ‘enhanced interrogation techniques’. These weren’t used only in the days and weeks after 9/11, but as late as 2006. In 2014, the Senate Select Committee on Intelligence (SSCI) released a heavily redacted 525-page summary of a full report some 6700 pages long which sets out an indictment of the CIA’s behaviour and concludes that it continued to justify the use of these techniques long after it knew they didn’t work, while deliberately providing misleading information to the Department of Justice and the White House and briefing classified (but inaccurate) information to the media about their efficacy. The European Court of Human Rights concluded in 2014 that the use of enhanced interrogation against Abu Zubaydah, when he was in CIA detention in Poland, breached the prohibition against torture.

In 2006, fourteen of the ‘high-value detainees’ held in the CIA black sites were transferred to the rapidly expanding detention facilities at Guantánamo Bay. The US government realised that the confessions obtained at the black sites would be inadmissible in any subsequent trial. Their solution was to carry out fresh interrogations at Guantánamo, this time carried out by ‘clean teams’ of FBI agents. But these ‘clean teams’ worked closely with the CIA. Instead of directly transcribing a detainee’s confession, the FBI agents summarised their answers in a letterhead memorandum kept on a CIA laptop. Any allegations of torture or mistreatment were put in separate memos. The defence legal teams argue that these confessions are inherently unreliable, having been obtained after years of torture. Although McCall has yet to rule on the motions to suppress the confessions in the 9/11 case, the government’s prospects don’t look good. A similar motion to suppress ‘clean team’ confessions was granted in August 2023 by the military commission judge overseeing the case of Abd al-Rahim al-Nashiri, who is alleged to have been involved in the bombing of USS Cole in Yemen in 2000. Judge Lanny Acosta held that al-Nashiri ‘did what he was trained to do: comply’. Although the ‘exclusion of such evidence is not without societal costs’, Acosta said, ‘admission of this evidence would greatly undermine the actual and apparent fairness of the criminal proceeding … in this case and infect the trial with unfairness sufficient to make any resulting conviction a denial of whatever process is due.’ (Acosta recently signed off a plea deal for al-Nashiri similar to that of the 9/11 defendants, but this will now go to the secretary of defence for approval.)

In November, McCall ruled that in attempting to revoke the plea deal, the defence secretary had acted too late and beyond the scope of his authority. The government immediately appealed against this decision, but it was upheld by a three-judge panel of the US Court of Military Commission Review. The government appealed again, this time to the DC Circuit Court of Appeals, which on 9 January, the day before he was due to question Mohammed on whether he understood his guilty plea, told McCall to cancel the hearing. Whatever the DC Court decides, both sides have a further right of appeal to the Supreme Court.

There are two more hurdles in the way of any attempt to make the 9/11 defendants face the death penalty. The first is that McCall retains the discretion to take that sentence off the table as part of a ruling on the motions to suppress the ‘clean team’ confessions, as a way of punishing the government. Any such decision could itself be appealed. The second hurdle relates to the plea deal itself. The terms of the agreement have not been released to the public, beyond a highly redacted version unsealed on 18 January, after an application made by the New York Times and other media outlets. But it is said to contain a ‘poison pill’ clause, drafted in order to protect the deal from any future Trump administration. This states that if the government withdraws and the defendants haven’t violated the agreement, any future trial would not have the death penalty as a possible punishment.

In the early days of Guantánamo, Lieutenant Pete Hegseth led a National Guard platoon tasked with guarding the perimeter of the newly built camps. Now he controls the OMC. Hegseth has blamed the glacial pace of prosecuting the war on terror on ‘left-wing lawyers and other protections’. Given Trump’s disdain for the rule of law, and his enthusiasm for building up Guantánamo, the future of the plea deals looks uncertain at best. The likely Supreme Court appeal will be a significant test for both the law and the court itself.