The executive branch has worked hard to get to this stage, against significant resistance. In 2006, the Supreme Court ruled that Salim Hamdan’s trial by military commission could not proceed, owing in part to its failure to conform to the Geneva Conventions. Accordingly, if the Bush Administration had proceeded under the existing regime, it might have been guilty of war crimes. However, Congress stepped in twice to attempt to provide a legal basis for these tribunals, and President Obama signed the Military Commissions Act of 2009, which revived the charges against such detainees as Omar Khadr, a Canadian who had been arrested as a fifteen year old, brought to Afghanistan by his father.
Khadr was put on trial for his life under conditions that were repeatedly denounced by international observers: he was denied exculpatory evidence and access to the evidence against him (such as it was: the tribunal explicitly allowed the introduction of hearsay evidence and anonymous witnesses for the prosecution). A number of military officials were barred from participating after attempting to exercise undue command influence, and prosecution witnesses were withdrawn in order to keep details of the torture program secret, despite the fact that evidence obtained under “enhanced interrogation” is explicitly permitted.
After numerous failures of this sort, the Pentagon is determined to proceed against its most hated detainees, the same men that they subjected to the worst forms of torture, including mock execution, a month of confinement in a coffin-sized box, and sodomy. Unfortunately, it appears that this torture had destroyed these detainees’ minds: one of those alleged “masterminds” of terrorists attacks about to be tried was described as “the dumbest terrorist I ever met” by the CIA’s Director of Operations, while the FBI’s leading al-Qaeda specialist said another was “insane, certifiable, split personality.” Dr. Sondra Crosby described another high value detainee (Abd al Rashim al Nashiri) as having been “irreversibly damaged by torture that was unusually cruel and designed to break him”, while Abu Zubaydah, who lost an eye and suffered brain damage under torture, “cannot picture his mother’s face or recall his father’s name.”
Numerous American politicians have argued that prisoners cannot be released—even if they were factually innocent—because they have been radicalized by their treatment at GITMO; they hate America owing to being tortured by Americans. One Republican staffer said that “whether they were radicals before they got to Guantánamo or they were radicalized while they were there doesn’t really matter.” But there is substantial evidence that many detainees were not radicals when they got there. In addition to clear cases of mistaken identity (including Afghans who happened to have the same name as terrorism suspects) there were numerous teenagers and even children among the detained. Mohammed el Gharani was fourteen when he arrived at GITMO; Mohamed Jawad may have been as young as twelve at the time of his detention.
There is also no compelling evidence that innocent detainees nurse burning hatred towards their captors. Mohamedou Slahi endured the worst forms of torture during his fourteen year detention without charge; after his release he noted that “Anger is very painful in the heart. So why should I be angry? Why should I pay twice?” He and his lawyers told 60 Minutes that he “forgives” and he “loves Americans”, as many--including his dauntless lawyer--supported him for years. It is impossible to read The Guantanamo Diaries or see his smiling face and believe that he has become the racist caricature that sustains the belief that the detainees are too dangerous to release. The same is true of Omar Khadr, who demonstrated his moral superiority to his torturers in Guantanamo’s Child, a remarkably moving documentary film.
It is possible that the flood of sympathy towards Slahi, Khadr and others has motivated the Administration and the Pentagon to stage a travesty of justice involving prisoners it tortured past the point of madness. These are not only “show trials” in the sense of being designed to produce propaganda; they are also not true trials because they are heads-I-win-tails-you-lose propositions. The detainees will likely be executed if found guilty, but if found not guilty, they will not be released. This is the reason why they have been labelled “forever prisoners.”
In 2011, the Obama Administration transferred Khalid Sheikh Mohammed from the civilian justice system back to the GITMO military commissions. When the alleged mastermind of the 9/11 attacks was arrested in Pakistan, he was photographed wearing western clothing and a short mustache. When he appeared before the military commission in 2012, on his head he wore a shemagh wound like a turban and a white bisht worn like a hooded cloak. The commission later gave him the right to wear a camouflage vest. This, in combination with his flowing salt-and-pepper beard, created a striking similarity to the iconic depiction of Osama bin Laden. Kangaroo court convictions of detainees tortured into insanity because they resemble hate figures would be a new low for the United States. Brigadier General John G. Baker—chief defense counsel for the detainees facing military commissions, provided this apt analysis:
“Justice Jackson said in his opening argument at Nuremberg: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.’ Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.”
It appears that the poison is now spreading through the veins of the American body politic. When the symptoms manifest, they may prove lethal to its constitution.