Since the prison at Guantánamo Bay opened in its “war on terror” iteration in 2002, there has been a tendency among liberal critics to hold it in stark relief to the “normal” civilian legal system. The cruelty and illegitimacy of Guantánamo Bay was contrasted against the inherent perceived legitimacy of U.S. courts and prisons. For as long as the detention center and the various tribunals have been around, it’s been common to hear arguments against them from human rights NGOs based on the efficacy and security of the civilian apparatus — the success rate of terrorism prosecutions, or the fact that no prisoner has ever escaped from a supermax prison.
There is no question that U.S. interrogators carried out unspeakable torture at Guantánamo Bay, that officials held prisoners incommunicado and without having been convicted of a crime, and operated for years with almost no oversight or visibility from outside watchdog groups. However, all of those elements are present to one degree or another in the normal incarceration regime in the United States, a point police and prison abolitionists have been making for the duration of the war on terror.
There has always been a fear that the abuses of Guantánamo Bay will migrate into the rest of the U.S. legal system. The reality is that many of them — including torture, indefinite pretrial detention and lack of oversight — have been there all along.
Ongoing plea negotiations in the 9/11 trial at Guantánamo Bay underscore just how outdated the conventional paradigm is. The five defendants in the trial are now in talks with prosecutors to bring the capital punishment case to close, but, according to The New York Times, one of the key requirements from the defendants in the prior round of negotiations in 2017 was that they be able to serve their sentences at Guantánamo, “where they are able to eat and pray in groups.” They were reportedly adamant that they didn’t want to be sent to the supermax prison in Florence, Colorado, where, as the Times writes, “federal inmates are held in solitary confinement up to 23 hours a day.” In the current round of negotiations, the Times reports that the five defendants want “guarantees that, even after their convictions, they would be able to eat and pray communally,” though they aren’t “pressing for a particular venue.” The ongoing fear that they could wind up back in extreme isolation, whether they’re held in military or civilian custody, reveals the baseline cruelty that permeates all U.S. prisons and detention facilities.
For prison abolitionists, the news that the five defendants are concerned about how they would be treated if transferred to a stateside prison is not surprising at all. “Finding that prisoners would reject transfer to a U.S. federal prison in Colorado in favor of remaining where they are in Guantánamo isn’t shocking. While we understand how egregiously torturous conditions at Guantánamo are, all prisons are deadly,” Woods Ervin, media director at Critical Resistance, an international prison abolitionist organization, told Truthout in an emailed statement. “We shouldn’t imagine that other prisons are ‘more gentle,’ especially under conditions of solitary confinement. Prisoners often push to remain under conditions where they can maintain their communities, collective practices, and shared fights for their freedom. The issue here is about prisoners making a collective, self-determined choice over the conditions they’re surviving under.” The conditions at the Florence supermax are horrific, even by U.S. standards. Incarcerated people describe cells made entirely of concrete, including the bed, where prisoners are kept isolated for 23 hours a day. Recreational time is an hour in a small cage. People there go for weeks, if not longer, without seeing the sky, or a highway, or any reminder at all of the outside world. It’s not hard to understand why the 9/11 defendants would want to condition any negotiation on avoiding that kind of treatment, either in a federal prison or post-conviction at Guantanamo Bay.
James Connell, an attorney for co-defendant Ammar al-Baluchi, confirmed the existence of the plea negotiations, which were first reported by The New York Times, in a statement posted to his defense team’s official Twitter account. “Negotiated agreements are part of all criminal cases, and negotiations have taken place throughout the case,” Connell said in the statement. “This process is not unusual: the vast majority of capital cases in the United States are resolved by plea.”
Alka Pradhan, a human rights lawyer who also represents al-Baluchi, said that the negotiations “represent one path to ending military commissions, stopping indefinite detention at Guantánamo Bay, and providing justice.” Military commissions are the novel legal apparatus in effect at Guantánamo Bay that combines military and civilian law. Connell and Pradhan declined to comment for this article.
The 9/11 trial at Guantánamo Bay is arguably in its most precarious state since the current iteration of the case began in 2012, when the five co-defendants were arraigned before a military judge. That judge, Col. James Pohl, is long gone, having retired before the case could advance beyond pretrial motions. Three judges have succeeded him, and an additional candidate had to recuse himself after being assigned the case but before he could sit on the bench.
The complications don’t stop there. The former chief prosecutor, Brig. Gen. Mark Martins, has also left the case, following clashes with the Biden administration about the applicability of international law at Guantánamo. Martins also served as the de facto chief spokesperson for the military commission system, which has been beleaguered by complications since Congress first created it in 2006, and updated in 2009. For nearly a decade, the defense and prosecution have argued about the rules of that system — from the mechanics of compelling witnesses to a remote military base on occupied, foreign soil, to the applicability of the Bill of Rights in the proceedings. The admissibility of evidence derived from torture has been central to the hearings, and remains unresolved.
The COVID pandemic also essentially shut down the entire trial for 500 days.
There are still 38 men held at Guantánamo Bay, 10 of whom have been charged in the military commissions system. Of the remaining prisoners, 19 have been cleared for transfer to a third-party country if security conditions are met. Seven have not been charged with a crime, but also aren’t cleared for transfer — this group is often referred to as “forever prisoners.” Two have been convicted, including Majid Khan, who also took a plea. Khan was tortured in the same CIA program as Khalid Sheikh Mohammed, who is accused of being the 9/11 “mastermind.” Last year, a military jury — known as a panel — urged leniency in sentencing Khan, who was the first victim of CIA torture to describe his treatment in a courtroom. The top sentencing official, known as the Convening Authority, approved a 10-year sentence and applied time served, meaning his term was finished on March 1 of this year. That doesn’t mean he’s free to go, however. The U.S. government reserves the right to continue to detain Guantánamo prisoners even after their time is served if a suitable third-party country hasn’t been identified. Khan’s lawyers are now calling for him to be transferred without delay.
The response from the military panel to Khan’s treatment underlines the complications of bringing the 9/11 case to trial. Each of the defendants in that case was tortured by the CIA, including waterboarding, rape and sexual threats, and repeated physical and psychological abuse. Recently disclosed legal filings revealed that Ammar al-Baluchi was used as a training tool: His torture was “on-the-job practice” for other interrogators. If the Khan case is any indicator, that kind of treatment would heavily mitigate against a death penalty sentence, even in a case as notorious as the 9/11 trial.
For as much reasonable worry as there is about Guantánamo Bay policies seeping into the civilian system, at least some of the torture enacted at Guantánamo in the early days of the war on terror was exported from U.S. prisons. Charles Graner, one of the few U.S. army soldiers held accountable for torture committed at Abu Ghraib in Iraq, “cut his teeth as first a guard / lieutenant at Pennsylvania’s max-security state prison, SCI-Greene,” Robert Saleem Holbrook, executive director of the Abolitionist Law Center, told Truthout in an emailed statement. “It was here that Graner routinely abused prisoners who were ‘in the hole’ (solitary confinement), just before he was activated for the reserves and sent to Iraq. I was on a unit (confined in solitary) with him [Graner].”
“This is just one example of how the U.S.’s domestic torture within its solitary confinement units [is] exported as part of its so-called war on terror,” Saleem Holbrook added.
Much of the abuse and torture the U.S. government has carried out in the wars it has waged since 2001 have been forgotten, ignored or justified. The image rehabilitation attempts of George W. Bush, Dick Cheney, and others responsible for creating the torture and kidnapping programs are proof of that. But much of the abuse that happens inside prison walls is ignored as well, made deliberately invisible to perpetuate an unjust system of social control. The ongoing plea negotiations in the 9/11 case are the most recent example of how blurred the lines between these systems are, and that it’s never clear that the damaging influence only travels one way. Those seeking to find justice by closing the prison at Guantánamo Bay should also ask whether justice is possible so long as any prison exists in the United States.