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.
