Eighteen years ago this week, the first War on Terror detainees were processed at Guantanamo Bay in Cuba. Then-Joint Chiefs of Staff Chairman Richard Myers described them as the “worst of the worst,” memorably adding that they were the kind of men who might try to chew through hydraulic cables to crash the transport planes flying them from Afghanistan to Cuba.
President George W. Bush took severe criticism for his decision to detain al Qaeda terrorists and senior Taliban insurgents at our Caribbean naval base rather than imprison them stateside. But as his successors soon discovered, it was the least-bad solution. After taking over, President Barack Obama’s desire to transfer these detainees to the U.S. mainland came to naught — for two main reasons.
First, Congress forbade the expenditure of military funds on any such project in a way that meant many uniformed leaders reasonably believed that orders to relocate detainees would be illegal. Second, while the Justice Department has great skill and experience trying individual terrorists, there was no safe place in this country to bring to trial so many detainees: This would have involved trying nearly 800 very bad men.
Doing so at the scene of their crime, holding them at the Metropolitan Correctional Center and trying them in the Southern District of New York, would have stifled Lower Manhattan for years with extraordinary security measures. Meanwhile, placing these detainees at the “administrative maximum” prisons in rural Colorado or Indiana would have dumped giant counterterrorism problems into the laps of small state and local law enforcement agencies.
And al Qaeda members proved skillful at prison breaks in Afghanistan, Iraq, and elsewhere. They remained dangerous as both planners and violent criminals while in custody.
The 1993 World Trade Center bombing was planned in part from a New York State prison in Attica, and the order for the 1997 massacre of Western tourists in Egypt was sent by “Blind Sheikh” Omar Abdel Rahman from the Metropolitan Correctional Center in New York City. The 1998 embassy bombers in East Africa tried to assault their trial judge in court and maimed a corrections officer. Federal judges who tried terror cases, such as Kevin Duffy and Michael Mukasey, remained under U.S. Marshal protection for years due to credible death threats and plots.
Bush’s inclination to keep ordinary American civilians from having to serve, unwillingly and dangerously, as jurors in 9/11 terror trials in the United States was correct. It was and still is better to have military volunteers run those risks.
So, too, was Bush’s instinct that there was actionable information to be gained from detainees, whom a senior defense intelligence official aptly described as a “library” of knowledge on terrorism. For example, the road to the 2011 killing of Osama bin Laden in Pakistan began at Guantanamo in 2002.
The interrogation of Muhammad al Qahtani (9/11’s would-be 20th hijacker) at Guantanamo obtained the name of Osama bin Laden’s courier. His phone eventually led U.S. intelligence, and ultimately Navy SEALs, to the compound in Abbottabad where bin Laden was killed. That success alone justifies Bush’s decision.
One thing Guantanamo’s critics have right, though, is the unacceptable lack of legal process for the detainees. While combatants may be detained for the duration of hostilities under international law, 18 years on, one need not be a card-carrying member of the American Civil Liberties Union to question why 9/11 ringleader Khalid Sheikh Mohammed has not yet stood trial for his crimes, which he has publicly admitted.
Simply put, the military commission system has thus far failed, inexcusably so.
Military commissions worked well and worked quickly as recently as World War II. When German would-be saboteurs landed at Amagansett, New York, and Jacksonville, Florida, in June 1942, they were arrested by the FBI, tried by a military commission, convicted, and sentenced to death. Then, they received judicial review by the Supreme Court and were executed in the electric chair by August of that same year.
In contrast, our current military justice system has not gotten its important job done. Dozens of uniformed lawyers have handled some aspect of each individual detainee’s case and moved on without resolving it.
Enough is enough. The Trump administration has a narrowing window of opportunity to fix the situation and try the 40 detainees remaining at Guantanamo. Experienced civilian prosecutors, defenders, and judges would likely accept direct commissions as officers to try and either acquit or convict and then sentence the handful of remaining 9/11-involved detainees.
The administration should call up and commission sufficiently skilled counsel to do what is long overdue and try these detainees. The detainees and, far more importantly, 9/11’s many victims and their families deserve no less.
Kevin Carroll served as a senior counsel to Secretary of Homeland Security John Kelly and House Homeland Security Committee Chairman Peter King, a CIA officer in the Mideast, and an Army officer in Bosnia, Afghanistan, Iraq, and Yemen. He is a contributor to the Washington Examiner’s Beltway Confidential blog.
