The original justification for the Military Commissions at Guantánamo was to bring accused terrorists to justice while simultaneously preserving national security. But in the two decades since 9/11, after accounting for all of the appeals and reversals by higher courts, the Commissions have produced only one final conviction. Conversely, in that time, our civilian justice system has convicted nearly 700 individuals on terrorism-related charges. At this point, it should be abundantly clear that justice will never come at — or to — Guantánamo.
This clarity is perhaps best demonstrated in the case of the five men accused of plotting the 9/11 attacks, who were first charged in 2008 but whose trial still has not begun. Covid-19 bears some recent blame for this, but it’s certainly not responsible for the government repeatedly appointing new Commissions leadership; the intricacies of death penalty litigation and unreliable, torture-derived evidence; or the appointment of four new judges in the past eight months, with a fifth soon to come after the most recent one was disqualified.
But the deficiencies of the Military Commissions go deeper. Most nefarious is the effect on those imprisoned without trial, a violation of every norm and custom under our constitutional system.
We represent one of these men who has never had the chance to defend himself. Mohammed Nazir Bin Lep is a 44-year-old Malaysian who was arrested in Thailand in 2003. Our government severely tortured him for three years and then shut him away in Guantánamo. He wasn’t involved in any attack on the United States; instead, he was allegedly affiliated with a Southeast Asian group that committed attacks in Indonesia. Though no one alleges that he planned, carried out or even knew anything about these attacks, he was charged with allegedly transferring money that the government believes — but hasn’t proved — helped fund those attacks.
Yet despite holding him for more than 17 years, at a cost of nearly a quarter-billion dollars, our government still refuses to bring Bin Lep to trial. At this point, key witnesses are dead, evidence is lost forever, and his chance to fairly defend himself has evaporated. The government has denied access to his medical records, and has yet to grant him a legally required evaluation for the mental and physical damage caused by torture. Furthermore, while the government decided to prosecute him at least 10 years ago, Bin Lep was denied legal assistance for a trial until 2019. If not for the evenhanded intervention of a federal judge, this misbegotten legal process would have degenerated even further.
We expect many Americans won’t raise an eyebrow at this or might think the details are mere legal technicalities. But Guantánamo exists in a shadowy legal gray zone, and only sunlight can illuminate the questions it raises about our fundamental values and commitment to the rule of law. For instance, what’s the endgame for detainees who will never see trial? Do we hold them indefinitely, regardless of how flimsy their connection may be to attacks upon the United States? And if the government creates laws and processes aimed at fairness, does it actually have to follow them, or can it simply ignore them when it’s convenient?
These questions demand answers, which is why we filed a petition asking a federal judge to answer them. Were this a normal case within our civilian justice system, our petition wouldn’t be necessary, because Bin Lep’s treatment is a clear violation of the Sixth Amendment. But even though the government has withheld basic constitutional and human rights protections from Bin Lep and his fellow prisoners, this has not accelerated the pace of justice. Decades later, victims and their families are no nearer to closure, the system faces rightful condemnation at home and abroad, and American taxpayers are still footing a bill of more than $500 million per year. Pragmatic concerns aside, what moral high ground have we surrendered by allowing the Commissions to bypass our principles? What does it say about us when we conjure excuse after excuse to ignore our values?
Some may find it difficult to care about the men in Guantánamo. But as Supreme Court Justice Felix Frankfurter wrote in 1950, “The safeguards of liberty have frequently been forged in controversies involving not very nice people.” These safeguards against government overreach and abuse are critically important for all of us — the “nice” and the “not very nice” alike. And unless there’s a fundamental shift in our failed approach to justice at Guantánamo, all of our profitless moral compromising will amount to nothing but the loss of our national soul.
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