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lloyd austin
Guantánamo: the Forever Mistake
Once you violate both fair treatment of prisoners and the basic principles of law, finding an unchallenged resolution to such cases is essentially inconceivable.
Jan 31, 2025
On January 10, one day before the 23rd anniversary of its opening, a much-anticipated hearing was set to take place at the Guantánamo Bay Detention Facility on the island of Cuba. After nearly 17 years of pretrial litigation, the prosecution of Khalid Sheikh Mohammed, or (KSM), the “mastermind” of the devastating attacks of September 11, 2001, seemed poised to achieve its ever-elusive goal of bringing his case to a conclusion. After three years of negotiations, the Pentagon had finally arranged a plea deal in the most significant case at Guantánamo. Along with two others accused of conspiring in the attacks of 9/11, KSM had agreed to plead guilty in exchange for the government replacing the death penalty with a life sentence.
After more than 50 pre-trial hearings and other related proceedings, Americans–and the victims’ families—would finally see closure for those three individuals who stood at the center of this country’s attempt to reckon legally with the 9/11 attacks.
More than 23 years after the 9/11 attacks, here we are in the very same place we’ve been for endless years—on pause again, despite the endless charade of forward steps that go nowhere.
Because of the fact that the defendants had been tortured at notorious CIA “black sites” before arriving at Guantánamo, the case had long been endlessly stalled. After all, so much of the evidence against them came from torture confessions. As it happens, such evidence is not admissible in court under U.S. or international law, or even under the rules of Guantánamo’s military commissions. For obvious reasons, it’s considered tainted information, “the fruit of the poisonous tree,” and so inadmissible in court. Although military commission prosecutors tried repeatedly over the years to find ways to introduce that all too tainted evidence at trial, attempts to do so failed time and again, repeatedly pushing potential trial dates years into the future. As a recently compiled Center on National Security chart shows, the forever delays in those hearings led to calendars of such length as to defy comprehension. In Khalid Sheikh Mohammed’s case, for example, such delays have so far amounted to 870.7 weeks.
With the plea deal now set to come before Judge Matthew McCall, who had agreed to delay his retirement in an effort to see this case to its conclusion, attorneys, journalists, and victims’ family members boarded planes, preparing to witness the longed-for conclusion to a case that had seemed endless. Perhaps you won’t be surprised to learn, however, that the hearing never took place. Delay was again the name of the game. As it turned out, from the moment the plea deal was announced, it became the centerpiece of an intense battle launched by then-Secretary of Defense Lloyd Austin.
What Happened
Two days after the August 2024 announcement of the plea deal by the “convening authority,” Brigadier General (Ret.) Susan Escallier, the Pentagon official in charge of the military commissions at Guantánamo Bay, Austin summarily overruled her, revoking the plea deal with little explanation and leaving experts and observers alike confused and disappointed. Had the secretary of defense not been consulted on the plea arrangement? That seemed unlikely. Had political pressure caused him to take such a drastic act? If so, then perhaps after the election he would change his mind and restore it. No such luck.
Whatever Austin’s motivation, Judge McCall refused to take “no” for an answer, declaring his revocation invalid.
McCall made it clear, instead, that he was moving forward. As the judge explained, in the memo that Austin had long ago issued appointing Escallier, he had attested to her independent authority. “Ms. Escallier shall exercise her independent legal discretion with regard to judicial acts and other duties of the Convening Authority.” But even as McCall prepared to go forward, Austin appealed to the Court of Military Commissions Review, asking it to rule that he did indeed have the authority to revoke the plea deal. However, that court then ruled that the secretary had improperly rescinded the deal after it had taken effect.
Still, he refused to give up, seeking help elsewhere. And he found it. On the eve of the scheduled hearing, the Department of Justice filed papers asking the D.C. Circuit Court to prohibit the Gitmo court from moving ahead and to stay proceedings while it contemplated the decision. Those who had flown to Guantánamo then returned home, and a new hearing was set for January 28th at the D.C. Circuit Court. At issue was both Austin’s authority to take over the plea deal and whether he had the right to withdraw from it, as lawyers argue that the dependents had already started performing their part of the deal. Of course, in the second age of Trump, it is no longer Austin but Secretary of Defense Pete Hegseth who will decide what happens next.
So, more than 23 years after the 9/11 attacks, here we are in the very same place we’ve been for endless years—on pause again, despite the endless charade of forward steps that go nowhere.
The Mirage of the Military Commissions
At this point, it’s worth asking whether the resolution of those cases by trial was ever a priority—or even a realistic goal. A look back over the course of the military commissions and the 9/11 case suggests some answers.
The Guantánamo detention facility was set up by a presidential military order issued on November 13, 2001. It authorized the detention of war-on-terror captives and mentioned future trials. “It is necessary for individuals subject to this order… to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.” Accordingly, the commander of the naval base at Guantánamo spent the early months of the detention operation scouring the base itself for a suitable facility in which to hold such trials. He was surprised when no one at the Pentagon approached him about the need for such a building.
So here we stand, with Donald Trump back in the White House, awaiting what this will mean for the future of the forever prison.
Fast forward six years, a year after those “high-value detainees” already tortured at CIA black sites were brought to Guantánamo. As NBC’s Bob Windrem later reported, an “Expeditionary Legal Complex was built in 2007 in the expectation it would be used for the trial of terrorists accused of murdering nearly 3,000 people with twin attacks on New York and Washington on September 11, 2001.” In 2008, the 9/11 defendants were charged. And last April, 17 years later, the Pentagon opened a second courtroom at the cost of $4 million for other cases pending before the military tribunals. Intrepid New York Times Gitmo reporter Carol Rosenberg recently summed up the costs associated with those signs of a continuing belief that actual trial proceedings were indeed in the cards this way: “The war court proceedings have cost hundreds of millions of dollars in salaries, infrastructure, and transportation. Since 2019, the Office of Military Commissions has added two new courtroom chambers, new offices and temporary housing, more lawyers, more security personnel, and more contractors.”
On the surface, it would seem as if the commitment to holding various war-on-terror trials was perfectly real. The price tag was certainly hefty enough, as were the numerous pre-trial proceedings in the 9/11 case, as well as in other cases before the military commissions, each involving charges against those accused of committing acts of terrorism—the bombing of the U.S.S. Cole destroyer with one defendant; terror bombings in Bali, Indonesia, with three defendants; and the cases of several other individuals charged with crimes of terrorism.
Yet given the failure of significant forward movement in such cases for so long, it’s hard not to wonder just how serious the commitment to resolving them ever was and whether the construction of such expensive trial buildings was either a mirage, intended to hide the fact that the cases were destined to go nowhere, or self-deception on the part of presidents George W. Bush, Barack Obama, and Joe Biden. (Donald Trump halted the military commissions during his first term in office, leaving them in legal limbo.)
After all this time, only two cases have ever gone to trial, one of which, that of Salim Hamdan, was later overturned. In the other, Ali Hamza al-Bahlul was convicted on three counts, two of which were eventually overturned. (At present, Mr. Bahlul is serving a life sentence at Gitmo, having arrived on its opening day 23 years ago.)
Meanwhile, there have been a grand total of nine plea deals over all these years. Of those, one convicted detainee is serving out a sentence at Guantánamo that ends in 2032, two convictions have been overturned, and two remain on appeal—a paltry record at best, especially given the grimness of those acts of terror. For all of the time, effort, and money, not to mention emotional distress, the results have been appallingly minimal.
Biden and Gitmo
To his credit, President Joe Biden, who inherited a Guantánamo with only 40 detainees left out of a total population that once stood at 790, seemed determined to make progress both in the military commissions and in releasing some of the remaining “forever prisoners” (a term originally coined by Times reporter Rosenberg to describe those living in the legal limbo of indefinite detention, neither charged nor released). Biden provided Gitmo watchers (like me) with some hope that the prison, distinctly offshore of American justice, would actually close someday.
During Biden’s years in office, the population was reduced to 15 men—six forever prisoners and nine still part of the military commissions (two of whom are already convicted). Eleven of the Biden releases, consisting of Yemenis sent to Oman, occurred amid the battle over Khalid Sheikh Mohammed’s plea deal, as if he were whispering to us that we needn’t worry, the road to closure was still available. Yet even that set of transfers suffered from the same sort of one-step-forward-two steps-back shuffle that’s been the essence of Gitmo’s history. The Oman arrangement had originally been planned for October 2023, only to be put on pause once the war in Gaza erupted. One of the men released had been cleared since 2010, only to await arrangements made two presidencies later.
The Biden administration unfortunately never released the last prisoners held without charge or brought the accused to trial. Even in these final moments of his presidency, when he was arguably free to do whatever he wanted, including closing the prison, he chose instead, by virtue of his administration putting the deal on hold, to halt forward progress, leaving us to wonder why.
So here we stand, with Donald Trump back in the White House, awaiting what this will mean for the future of the forever prison.
Once You Break It, You Can Never Really Fix It
Sometimes, when it comes to Gitmo, it almost seems as if forces beyond the capacity of mere mortals are at play. No matter what promises are made, no matter what hope-inspiring acts are taken, no matter what progress occurs, the prison seems to have a life of its own, aided and abetted by those who continue to mount obstacles to any significant steps forward.
Of course, the biggest of the lessons learned should have been to honor the laws, both domestic and international, forbidding torture. Had the United States not authorized a program of what was euphemistically referred to by the administration of President George W. Bush as “enhanced interrogation techniques,” including beatings, waterboarding, sleep deprivation, sexual humiliation, sensory bombardment, and all too much more, those trials could have been held in a timely fashion and in federal court on the mainland.
As President Barack Obama’s attorney general, Eric Holder, had wanted, the federal courts would have been capable of handling such cases without using “evidence” produced by torture. In fact, one Guantánamo detainee, Ahmed Ghailani, was indeed transferred to the United States for trial in federal court and, though he was acquitted on 284 of 285 charges, he was found guilty on one count and sentenced to life in federal prison. Still, the hundreds of acquittals in his case chased away the idea of trying the remaining Guantánamo defendants in federal court.
From all of this, there’s a basic lesson to be learned: Once you violate both fair treatment of prisoners and the basic principles of law, finding an unchallenged resolution to such cases is essentially inconceivable.
In other words, once you break it, you can never really fix it.
Today, that long, soul-crushing, legally abhorrent story stands, at a far greater cost than we might once have imagined, where it has always stood—as a mistake that never should have happened and that, once made, never found a leader able to muster the courage to end it.
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As US Approves Landmines for Ukraine, Victims Demand 'Mine-Free World' at Global Summit
"Every landmine planted is a child, a civilian, a woman, who is just waiting for their legs to be blown off, for his life to be taken," said one survivor who lost a leg to a landmine in 2005.
Nov 26, 2024
"Look what anti-personnel landmines will do to your people," read a sign displayed by two of the protesters who gathered in Siem Reap, Cambodia this week to confront delegates at a conference on the Anti-Personnel Mine Ban Treaty.
The people holding the sign were among those who took part in the demonstration while using wheelchairs or crutches due to the amputations and serious injuries they have suffered from landmine attacks.
More than 100 people lined a walkway leading to the conference venue on Sunday as the Siem Reap-Angkor Summit on a Mine-Free World opened.
The conference began days after the Biden administration announced a reversal of its own policy and approved a plan to provide anti-personnel landmines to Ukraine—a decision that was condemned by the International Campaign to Ban Landmines (ICBL) and other human rights groups.
As Amnesty International USA advocacy direct Ben Linden said last week, the weapons are "inherently indiscriminate" because they cause explosives to scatter across a wide region, putting people at risk long after conflicts end. The majority of landmine victims are children.
In 2023, at least 5,757 people were killed or maimed by landmines, 84% of whom were civilians. Over one-third were children.
Alex Munyambabazi, who lost a leg to a landmine in 2005 in Uganda, was among those who assembled at the landmines summit.
"We don't want to see any more victims like me, we don't want to see any more suffering," he toldAgence France-Presse (AFP). "Every landmine planted is a child, a civilian, a woman, who is just waiting for their legs to be blown off, for his life to be taken. I am here to say we don't want any more victims. No excuses, no exceptions."
The U.S. and Russia are not signatories to the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction, but Ukraine is. According to U.S. Defense Secretary Lloyd Austin, Ukraine "asked" for anti-personnel landmines.
Tamar Gabelnick, director of ICBL, told AFP that Ukraine's use of U.S.-supplied landmines would signify a "blatant disregard for their obligations under the mine ban treaty."
Ukrainian delegates were present at the Siem Reap conference this week.
In a message delivered to delegates in Siem Reap, United Nations Secretary-General António Guterres acknowledged the "important progress" made by the treaty, "with over 55 million anti-personnel devices destroyed across 13,000 square kilometers in over 60 countries, and thousands of people receiving lifesaving awareness education and victim assistance services."
"I call on states parties to meet their obligations and ensure compliance to the convention, while addressing humanitarian and developmental impacts through financial and technical support," he said. " I also encourage all states that have not yet acceded to the convention to join the 164 that have done so."
"A world without anti-personnel mines is not just possible," Guterres said. "It is within reach."
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'Inconceivable': US Condemned Over Decision to Provide Landmines to Ukraine
"Ukraine already faces years of demining due to Russian landmine use," said the International Campaign to Ban Landmines. "Adding to this contamination would impact its own population for decades to come."
Nov 20, 2024
The Biden administration's decision Tuesday to reverse its own policy and greenlight the provision of anti-personnel landmines to Ukraine drew international condemnation, with human rights organizations warning that generations of civilians will bear the costs of the move.
The International Campaign to Ban Landmines (ICBL), which won the Nobel Peace Prize in 1997 for its work against the weapons, said Wednesday that it "strongly condemns" the Biden administration's move and noted that Ukraine is prohibited from acquiring or using landmines under the terms of the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction.
Neither the United States nor Russia—which has used landmines repeatedly against Ukraine since its full-scale invasion in February 2022—are signatories to the treaty. But in 2022, the Biden administration barred the transfer and U.S. of American-made landmines except in defense of South Korea, reversing a Trump-era policy that weakened restrictions on the weapons.
"The U.S. must respect its own policy prohibiting landmine transfers," ICBL said Wednesday. "As the world's largest donor to mine clearance, spending millions annually to protect civilians, it's inconceivable the U.S. would facilitate laying new mines."
"Ukraine has repeatedly affirmed its commitment to the Mine Ban Treaty since 2022. ICBL urges Ukrainian officials to demonstrate this commitment by refusing this transfer. International humanitarian law cannot be set aside during conflict," the organization added. "Ukraine already faces years of demining due to Russian landmine use. Adding to this contamination would impact its own population for decades to come."
ICBL implored the administration to reverse its decision, saying that "the protection of civilians cannot be compromised, even in extraordinarily difficult circumstances."
It's unclear when U.S. landmines will be shipped to Ukraine, which is already littered with landmines that, at the current pace, will take an estimated 757 years to remove. An unnamed official toldDefense News that the U.S. landmines would be delivered to Ukraine "soon."
On Wednesday, the Biden administration announced a fresh package of military assistance for Ukraine that includes mortar rounds, artillery ammunition, and "demolitions equipment and munitions." The package was announced hours after Ukraine fired American-made long-range missiles deep into Russian territory for the first time in the wake of U.S. President Joe Biden decision to allow Ukrainian forces to do so.
"Anti-personnel landmines are inherently indiscriminate weapons that maim and kill civilians long after conflicts end and shouldn't have a place in the arsenal of any country."
Speaking to reporters Wednesday, U.S. Defense Secretary Lloyd Austin said that Ukraine has "asked for" anti-personnel landmines.
"So I think it's a good idea," Austin said of the administration's decision to roll back its 2022 policy.
Ben Linden, advocacy director for Europe and Central Asia for Amnesty International USA, expressed strong disagreement, saying in a statement that the decision was "reckless" and "a deeply disappointing setback for a president who once agreed that landmines put more civilians at increased risk of harm."
"It is devastating, and frankly shocking, that President Biden made such a consequential and dangerous decision just before his public service legacy is sealed for the history books," said Linden. "Anti-personnel landmines are inherently indiscriminate weapons that maim and kill civilians long after conflicts end and shouldn't have a place in the arsenal of any country. Even the 'nonpersistent' mines are a threat to civilians. In the face of continued Russian aggression, including the killing and injuring of Ukrainian children, landmines are not the answer to keep civilians safe."
News of the Biden administration's decision came shortly before ICBL issued its annual report on anti-personnel landmines and their impacts worldwide.
The 142-page report found that "there were at least 5,757 new casualties from landmines and explosive remnants of war in 53 countries and two other areas in 2023, including 1,983 deaths."
"Civilians made up 84% of all recorded casualties in 2023," the report noted, "while children were 37% of casualties when the age was recorded."
Mark Hiznay, associate arms director at Human Rights Watch and an editor of the report, said in a statement that "new use of anti-personnel mines by countries that have not joined" the international mine ban convention "threatens both civilian lives and the effectiveness of this lifesaving treaty."
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