海角大神

When Omar Ashmawy, then a United States Air Force officer, volunteered for the job of prosecuting Guantanamo Bay detainees in 2007, he had high hopes for America鈥檚 prospects of dispensing justice.聽

鈥淚 believed in the idea that military tribunals historically have been a way for nation-states to resolve crimes against humanity, and I think terrorism very much qualifies as a crime against humanity,鈥� he says.聽

The Supreme Court had recently ruled that the Bush administration鈥檚 process for trying terrorist suspects violated their rights 鈥� as well as the Geneva Conventions 鈥� by, among other things, barring defendants from viewing the evidence against them. That was a promising development, he thought.聽

At the same time, someone he 鈥渧ery much respected鈥� was the Defense Department鈥檚 chief prosecutor at the time. 鈥淚f that individual was willing to put his name behind the process, then that was something I was comfortable doing as well.鈥�

But just a few weeks after Mr. Ashmawy reported for duty, that same individual resigned in protest, saying he no longer believed that fair trials for the suspects were possible.聽

鈥淚 guess if there was any moment that drove home my concerns, it was that one 鈥� but it was really just the beginning,鈥� he says. 鈥淚t was a slow, incremental revelation that the more you saw behind the curtain, the less you really could trust the process. I went in thinking I could do good.鈥� As time went on, he concluded that he was 鈥渕ore or less assisting a system that was not geared towards doing what it was arguably set up to do.鈥�

Public statements of disillusionment like Mr. Ashmawy鈥檚 have long been a catalyst in demands to shut down the detention center, which critics argue is an ugly stain on the democratic ideals of the United States 鈥� particularly when coupled with the documented torture of those held there.聽

The Biden administration wants to shutter the prison. Defense Secretary Lloyd Austin told lawmakers in advance of his January confirmation hearings that he believes it should be closed, adding that he would 鈥渄irect my staff to work with other administration officials to develop a path forward for the remaining鈥� detainees.

Despite there being no obvious path forward for some of the聽prisoners 鈥� most of whom have been held for 20 years without trial 鈥� the administration appears to be working quietly to move them out of Guantanamo and turn the page on what many see as a failure of justice.

鈥淭here definitely are things going on behind the scenes, names that have been given to me of different people who are taking different pieces of it,鈥� says Karen Greenberg, director of Fordham University School of Law鈥檚 Center on National Security.

While former President Barack Obama put closing the prison at the center of his platform, only to see his marquee goal thwarted over the course of his two terms, President Joe Biden has held his plan close to the vest.聽

鈥淚 understand the preference for doing this quietly, rather than with a lot of fanfare, and I think that鈥檚 right. It鈥檚 the lesson from Obama: the quieter the better,鈥� says Dr. Greenberg.

鈥淛ust in terms of the size of the population, it鈥檚 a small bus of people,鈥� adds Michel Paradis, a senior attorney for the Department of Defense who is regularly appointed to represent Guantanamo Bay detainees. 鈥淵ou can figure that out.鈥�

An almost-empty prison

The population of the detention center has been reduced from some 675 in its heyday in 2003 to 39 today. Ten more detainees have been cleared for release, provided the White House can find other countries willing to take them and adhere to U.S. surveillance requirements. An additional 17 are eligible for evaluation by a periodic review board to determine whether they can be transferred, if they are not found to pose 鈥渁 continuing significant threat鈥� to the U.S.聽

At the same time, 20 years after the 9/11 attacks, military commission proceedings for the plotters are still in the pretrial phase. After a 17-month pause during the coronavirus pandemic, jury selection 鈥� meant to start last January 鈥� has not yet gotten underway. The earliest estimate for a 9/11 trial to begin is 2024.

Some are wondering why the trials are plodding ahead at all. Aside from their myriad delays and well-documented legal shortcomings, military courts have garnered just eight convictions in the past two decades 鈥� half of which have been overturned 鈥� at a total cost, in operations and trials, of more than $6 billion.聽

Federal courts, by contrast, have secured more than 660 terrorism convictions since 9/11 鈥� including more than 110 in which the defendant was captured abroad 鈥� with a conviction rate upward of 90%. The trials for the Benghazi attacks of 2012 were conducted in federal court, for example, with guilty charges for all and 鈥渁lmost no fanfare,鈥� Dr. Paradis says.聽聽

鈥淭he idea that you couldn鈥檛 mount a successful, just, and transparent trial of the alleged 9/11 plotters in federal courts is just belied鈥� by these figures, he notes. 鈥淭he civil libertarian in me has anxiety on this point, but it鈥檚 actually not that hard to convict people鈥� of terrorism in America. 鈥淭hese federal crimes are written extremely broadly.鈥�

But federal trials have not been an option, since lawmakers have for years woven prohibitions barring the Pentagon from bringing suspects to U.S. soil into the annual defense budget.聽聽

Last month, however, the House version of the $768 billion 2022 National Defense Authorization Act ended this ban with a bipartisan vote.

The Senate still needs to pass its own version of the bill, which currently includes the prohibition. And eight Republican senators, including Ted Cruz of Texas and James Inhofe of Iowa, wrote a letter in May to Mr. Biden expressing concern that 鈥渢he 40 remaining detainees are all high risk.鈥�

Federal prisons holding them would be enticing terrorist targets, lawmakers have argued. 鈥淐onsider the propaganda value for ISIS if it successfully sprang a hardened Gitmo terrorist on American soil,鈥� Republican Rep. Scott Perry of Pennsylvania said in a 2016 hearing. 鈥淎nyone who thinks this is impossible is suffering from, as the 9/11 Commission put it, a 鈥榝ailure of imagination.鈥� 鈥�

Major County Sheriffs of America, which represents sheriff鈥檚 offices from the largest counties, has weighed in as well, warning that 鈥渄etainees deemed too dangerous to release should not be brought to the homeland where they will pose a threat to the local communities we serve.鈥�

Such 鈥減earl clutching鈥� concerns that Guantanamo Bay detainees could not be safely held in a federal prison are 鈥渓udicrous,鈥� Dr. Paradis says. The U.S. houses 鈥渕ore and worse people in regular prisons every day.鈥澛�

The men are also 20 hard years older; Trump-era renovation plans for Guantanamo Bay include provisions for wheelchair ramps. 鈥淪o the idea that we have to be worried about two dozen individuals as if they were somehow the X-Men is propaganda,鈥� Dr. Paradis adds. 鈥淚t鈥檚 fear-mongering.鈥�

鈥淭oo damaging to the soul of the U.S.鈥�

Yet even if the worst-case scenario happened, it would be worth suspending military commissions altogether and trying the cases in federal court, says Mr. Ashmawy, the Air Force prosecutor. 鈥淢aybe some of them get acquitted. Maybe they return to the battlefield,鈥� he says. 鈥淏ut if we cannot try these individuals with the protection that we would expect to give to ourselves and our own citizens, then they shouldn鈥檛 be tried. They should be released.鈥�

He pauses. 鈥淭hat鈥檚 a very difficult thing to say, because it comes with a certain sacrifice 鈥� but the prison at Guantanamo Bay is an unsolvable problem unless someone is going to make a decision to accept a level of political risk.鈥�

To date, the Biden administration has shown this sort of 鈥減olitical courage and an incredible ability to ignore the criticism that鈥檚 tied to these old and stale debates 鈥� to take the hard knocks鈥� in places like Afghanistan, for example, Dr. Paradis says.

Such willingness to take on political and even physical risk is vital for democracy, says Mr. Ashmawy, a first-generation American whose father is from Egypt and mother from Italy. 鈥淚 always felt like our family experience was very blessed, and I wanted to do something to give back to this country. The military seemed to me like the best way to do that.鈥�

Yet his experience prosecuting Guantanamo Bay detainees for military commissions convinced Mr. Ashmawy that it鈥檚 not a process worthy of the America he admires. This view crystallized for him after he secured a guilty verdict in August 2008 against Osama bin Laden鈥檚 personal driver, Salim Ahmed Hamdan.

The military jury concluded that he provided material support to Al Qaeda, but acquitted him of terrorism conspiracy charges. Mr. Hamdan was sentenced to 5 1/2 years in prison, with credit for the five years he鈥檇 already served at Guantanamo Bay.聽

Then came the twist. 鈥淎n official statement was made that whatever his sentence by a military jury, it didn鈥檛 matter,鈥� Mr. Ashmawy recalls. A聽Pentagon spokesman said that even after Mr. Hamdan had completed his sentence, the DOD could continue to classify him as an enemy combatant and detain him indefinitely. 鈥淭he longer this charade has continued, the easier the decision was in my mind [to stop prosecuting detainees],鈥� Mr. Ashmawy says. 鈥淚 mean, how much longer are we going to hold them? Forty years? It鈥檚 already been 20. Is the plan to hold them until they die?鈥澛�

It鈥檚 a question that emerged this week in the first case involving a Guantanamo Bay detainee heard by the Supreme Court in more than a decade. The detainee known as Abu Zubaydah challenged U.S. government efforts to block testimony about torture at secret CIA 鈥渂lack sites.鈥� The treatment of Mr. Zubaydah 鈥� including intensive waterboarding and being locked in what was essentially a coffin for hundreds of hours 鈥� was among the most appalling revelations in the Senate Intelligence Committee鈥檚 2014 report. The CIA ultimately concluded that Mr. Zubaydah 鈥渨as not a member of Al Qaeda,鈥� yet he has remained in U.S. custody at Guantanamo Bay. 鈥淚 don鈥檛 understand why he鈥檚 still there after 14 years,鈥� Justice Stephen Breyer said during oral arguments Wednesday.聽

Mr. Hamdan, for his part, was transferred to Yemen in November 2008 and released under supervision by the government there in January 2009. In 2012, his conviction was overturned by the U.S. Court of Appeals for the District of Columbia Circuit, and he was acquitted of all charges.聽

This move was to the credit of the U.S. federal courts, Mr. Ashmawy says. 鈥淚ndefinite confinement, without any meaningful rights,鈥� he adds, 鈥渋s simply too damaging to the soul of the U.S. to accept.鈥�

Editor's note: An editing error in Defense Secretary Lloyd Austin's quote has been corrected.