Legal Process a 'Farce,' Keeping Guantanamo Detainees in Near Perpetual Limbo

Chain link fence and concertina wire surrounds a deserted guard tower within Joint Task Force Guantanamo's Camp Delta at the U.S. Naval Base in Guantanamo Bay, Cuba March 21, 2016. Lucas Jackson/Reuters

War crimes trials at Guantanamo Bay for suspects accused of attacks against the United States have ground to a near halt a decade after the military courts' creation, with lawyers warning that some detainees could spend many more years waiting to be tried.

Despite President Barack Obama's early vows to close the facility in eastern Cuba amid charges that suspects had been tortured, the United States continues to spend some $91 million a year on military trials at the base, which has 61 remaining inmates.

"The military commissions in their current state are a farce," Marine Brigadier General John Baker, the chief defense counsel, said last month at a Washington legal conference, of the tribunals that prosecute detainees. "The Guantanamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and more delay."

James Connell, a defense lawyer for Kuwaiti Ammar al Baluchi, one of five suspects on trial for their alleged roles in the Sept. 11, 2001, attacks, said that trial was not likely until maybe 2020, almost two decades after airline hijackers killed nearly 3,000 people.

Because the court and much of the evidence lies outside the United States, the trial "is 100 times more complex than even a complex ordinary death penalty case," said Connell.

In contrast with Guantanamo, federal prosecutors operating in U.S. courts have secured more than 340 terrorism convictions over the last decade, a Justice Department spokesman said. Tanzanian Ahmed Khalfan Ghailani was transferred from Guantanamo to New York in 2009, and 17 months later a civilian jury convicted him for his role in al-Qaeda bombings in East Africa. He is serving a life sentence.

Just six Guantanamo cases have resulted in convictions so far, with two guilty verdicts being appealed, according to the military commissions' website. In one appeals case, a federal court overturned two of the three convictions of Ali Hamza al Bahlul, the suspected publicist for slain al-Qaeda leader Osama bin Laden. An appeal decision is pending on the third charge.

Pentagon officials defended the pace of proceedings, saying that it takes time to resolve many of the classified documents submitted as evidence.

"The Department of Defense is committed to fairness and transparency in the military commissions proceedings," Pentagon spokeswoman Lieutenant Colonel Valerie Henderson said in an email.


President George W. Bush signed the law creating the tribunals on Oct. 17, 2006, after the U.S. Supreme Court struck down previous tribunals set up to try al-Qaeda suspects, ruling that they violated U.S. military law and the Geneva Conventions.

Obama took office in 2009 and vowed to close the prison. He approved legislation that included barring the use of evidence obtained under torture. The effort to close Guantanamo stalled amid opposition from Congress, with Republicans saying many of the prisoners are too dangerous to release.

John Yoo, who helped draft the Bush administration's legal strategy after 9/11, said the Guantanamo courts were designed for plea bargaining to get suspects to cooperate with government intelligence agencies.

The Supreme Court ruling "slowed the whole thing down, and it has become a risk-averse system that doesn't want to make another mistake," said Yoo, now a law professor at the University of California, Berkeley.

Government interference is also an issue. Sept. 11 defense lawyers have found their meeting rooms bugged, had mail with clients seized, and contend that the Federal Bureau of Investigation has tried to infiltrate a defense team.

Last year, a Sept. 11 suspect at Guantanamo recognized that a court interpreter had also worked at a Central Intelligence Agency prison where he was held.

"Every issue that comes up is a new and novel issue that can take days" to resolve, said Morris Davis, a former Air Force colonel and the first Guantanamo prosecutor.