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Give Karen Greenberg credit. Back in September 2007, writing her second piece for TomDispatch, she entitled it "Guanta'namo Forever." Well, here we are, 17 years later, and that nightmare prison, first established by the administration of President George W. Bush to house -- a distinctly polite term -- the (largely tortured) prisoners of 9/11 and the Global War on Terror, still remains open as Donald Trump's second term in office begins. It continues to house 15 forever prisoners and, so many years later, as Greenberg writes today, that "mistake that never should have happened" still goes on and on and" yes!" on.
And here's a (grim) thought to put with that: Donald Trump has sworn to deport nothing less than "millions" of immigrants now in the United States and has already threatened to visit economic devastation on countries that might refuse to take them back. But count on one thing: all of this won't be faintly as easy as he imagines and it won't surprise me at all if, at some point in his own war not on but of terror, he starts sending some immigrants to" yes, Guanta'namo!
After all, though it's long forgotten, starting in the 1970s, the U.S. military base in Guanta'namo, Cuba, was already being used to hold immigrants picked up on their way from Haiti to the U.S. And from the 1990s, this country ran a grim "quasi-hidden" Migrant Operations Center at Guanta'namo, while U.S. military forces there war-gamed far worse.
Hey, don't be surprised. After all, back in 2019, it was reported that Donald Trump had already suggested that migrants to this country be designated "enemy combatants," which would indeed prepare the way for sending them to Guanta'namo. And with that in mind, let Greenberg take you on a little visit to the American prison from hell that still hasn't closed and now lies in wait for the Trump years. Tom
The Forever Charade
Gitmo, Yesterday, Today" and Tomorrow
On January 10th, one day before the 23rd anniversary of its opening, a much-anticipated hearing was set to take place at the Guanta'namo Bay Detention Facility on the island of Cuba. After nearly 17 years of pretrial litigation, the prosecution of Khalid Sheikh Mohammed (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 Guanta'namo. 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.
Because of the fact that the defendants had been tortured at notorious CIA "black sites" before arriving at Guanta'namo, 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 Guanta'namo'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 Guanta'namo 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.
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