Guantanamo Bay, Cuba, is a place where time stands still.
In December 2017, I travelled to Guantanamo, the U.S. Naval base home to the United States’ most notorious detention center, as a nongovernmental organization observer through the Center on National Security and the Law.
The purpose of the trip, organized by the Georgetown University Law Center, was to view military commission hearings for the case of Khalid Sheikh Mohammed and four other men accused of planning and executing the 9/11 terrorist attacks. When I told people where I was headed, I got several similar responses: “That place is still open?” or “They haven’t convicted them yet?”
Guantanamo had fallen out of our collective consciousness — but perhaps not for long. We are a country hopelessly idealistic about our justice system, but Guantanamo is a place where we have forsaken those ideals.
On Tuesday, Jan. 30, President Donald Trump signed an executive order to keep Guantanamo Bay open and permit the prison to take new detainees. This move, sure to prolong the operations undertaken at Guantanamo, is a departure from the policies of former presidents George W. Bush and Barack Obama, who both at one point stated they would seek Guantanamo’s closure. Hamstrung by political pressure, neither was able to close the prison.
Mohammad and his alleged co-conspirators, who are held at Guantanamo along with about 35 other men, are in some ways fortunate compared to their fellow detainees. Although the military commission process is imperfect, these five have at least been charged and can participate in ongoing pre-trial proceedings. Most other detainees at Guantanamo are abandoned by the law, with no charge or semblance of legal proceedings in sight.
From its very beginnings, the detention center at Guantanamo has pushed the boundaries of both national and international law. Its history is riddled with stories of men the United States now openly recognizes were wrongfully detained. For years, these men were stuck in the quagmire of Guantanamo’s “political process” before they were released. Even today, five of Guantanamo’s current detainees have long been cleared for release, but Trump’s executive order means their wait will likely be indefinite. This wait is not a change from the status quo, where the terms of most detainees seem infinite, even for those who have been charged.
The case of Mohammed and his alleged co-conspirators has proceeded in its current form since around 2009. Hearings occur for one to two weeks out of every month at a specially designed courthouse in Guantanamo. The military commission judge, the entire prosecution and defense teams and other necessary figures are flown in for each separate week of hearings. The week I was there, the military commission spent the entire first day arguing about an allegedly classified information leak by the defense. This discussion, like most of the pre-trial hearings in the case to date, had little to do with the merits of case — whether Mohammed and the four other men are guilty of facilitating the 9/11 attacks.
Although some men have been tried in the military commissions and released from Guantanamo, this particular trial feels like little more than a charade. In conversations with stakeholders during my visit, several expressed that the trial seems to be a way to fill time — if the government wants to keep these men in Guantanamo for the rest of their lives, it can do so regardless of a trial or its outcomes. The prosecution, on the other hand, refused to meet with us because the case was “too close to trial.” They have refused to meet with observers for at least several months by using this excuse, and still no trial date is in sight. These unbalanced practices are tacitly supported and further abetted by Trump’s executive order.
Indeed, the prosecution often seemed little inclined to do its job at all, resting instead on the fact that these men have already been condemned in the court of public opinion. In response to various legal arguments raised by the defense, the prosecution seemed content to merely play videos of the planes hitting the World Trade Center on 9/11, a move that was often so nonresponsive to the defense’s arguments that it incurred reprobation from the judge.
Establishing Mohammed’s guilt matters less than the fact that he is in the custody of the United States, and we have decided we can hold him indefinitely. This decision, representative of a process unlike any other in established law, is applied with even more severity to the other men in Guantanamo – there is no matter of their guilt, for they have been charged with no crime. Yet we have them, and we have decided we can hold them indefinitely.
If we are going to hold these men indefinitely, the processes of our justice system must lead us to that conclusion. Because of Trump’s executive order, however, it seems as though Guantanamo will remain a legal aberration — a place where time stands still.
Caroline Boisvert graduated from the School of Foreign Service in 2013 and is a student at the Georgetown University Law Center.