On this charter flight organized by the Pentagon, family members of the victims of September 11, lawyers, judges, soldiers, members of NGOs, law students and four journalists travel. They carry with them the feeling of injustice and dysfunction, boredom, despair and a suitcase full of doubts: what good have been two decades of torture, abuse and indefinite detentions in the name of revenge? Who has won the War on Terror? When will this dark chapter in American history end?
The plane takes off at Andrews Air Force Base in Maryland and heads toward the Caribbean. In the next three hours, it will circle Cuban airspace to enter the island from the southeast. In Guantánamo, an experience prepared in detail awaits them to convince them that in this legal hole the law prevails. The official reason for the trip is the beginning of the 50th pretrial hearing of the highest-level case in the military courts that the George Bush administration installed in this bay after 9/11: the one that plans to judge, in the optimistic scenario of that one day the intellectual authors of the largest attack in US history will come to trial.
However, the control of the selfies taken during their stay, the prohibition of visiting the most expensive prison in the world, the constant need for an escort to move around the naval base and the lack of transparency regarding their questions will show them that what is truly What prevails is not federal law, nor the Constitution, nor even international law, but secrecy.
Since the first twenty prisoners arrived in 2002, 780 men, almost all Muslims, have passed through this prison. Today around thirty are detained. The majority have been released to other countries after spending years arbitrarily detained without charge, and tortured with total impunity in this legal limbo 3,000 kilometers from the Supreme Court in Washington. Only eleven have been convicted in military commissions, which have accumulated years of delays and litigation; The rest are still waiting for a formal accusation or in the pre-trial phase, or ready to be released when a third country takes them in.
Maintaining this prison costs about $500 million a year and, although a majority of Americans would like to close it, nothing seems to indicate that it will happen anytime soon. The United Nations first called for its closure in 2006. At the end of the Bush administration, 540 prisoners were released without charge and transferred to other countries, but the former president refused to close it. On his second day in the White House, Barack Obama signed an executive order in 2009 to empty and close the prison within a year. Although he managed to transfer another 200 prisoners, he failed due to the impossibility of reaching agreements with the countries of origin. In his second term, he tried to move the trials to US territory, but was blocked by Republicans in Congress.
Then came Donald Trump, who promised to keep it open and fill it with “bad guys” and even proposed sending coronavirus patients and undocumented immigrants there. It didn’t happen either: during his presidency, the population remained at 41 prisoners. Finally, after being elected in 2020, Joe Biden set out to end the center before the end of his term. Six months before the elections, there is no progress in the extradition of the 30 detainees who remain in jail, half of whom are free of charges and are still waiting for a country to take them in.
In addition to partisanship, much of the Guantanamo stalemate is explained by its origins. On Friday, September 14, 2001, Bush climbed onto the rubble of the Twin Towers and, megaphone in hand, promised revenge, justice and reparation. “I can’t hear you,” shouted one of those present. “I do listen to you, the rest of the world listens to you and soon those who demolished these buildings will listen to us.” The answer was immediate. It came six days later with an unprecedented declaration of war from Congress, the Global War on Terrorism: “Our war on terror begins with Al Qaeda, but it does not end there. It will not end until every terrorist group with global reach has been found.” , stopped and defeated”.
Three weeks later, Washington launched a large-scale military intervention in Afghanistan, joined by several NATO countries, which invoked their Article 5 for collective defense for the first time. In less than two months, they took Kabul and defeated the Taliban regime, which they accused of having harbored and protected the leaders of Al Qaeda.
Then came the invasion of Iran and CIA intelligence operations in other countries – Pakistan, Yemen and Syria, among others – in search of terrorists. In the process, thousands of suspected militants of the Islamist organization were killed, captured or sold to the CIA in exchange for $5,000. The war on terror had only just begun: Osama Bin Laden, founder and leader of Al Qaeda, managed to escape in time, and would not be captured until a decade later.
The same day that US troops took Kabul, Bush issued a military order for the “detention, treatment and trial” of the alleged terrorists. The order authorized the US to detain foreign nationals without charge indefinitely and prevented them from pursuing any legal process to challenge their arrest. The place chosen for these detentions would be a century-old US naval base in Cuba, which the US had occupied in 1898 after defeating Spanish troops in the war of independence.
In January 2002, the first prisoners began to be forcibly transferred, after being captured and, for the most part, tortured with Bush’s authorization in secret CIA detention centers, in search of information on the location of the terrorists. They arrived shackled hand and foot, dressed in orange jumpsuits, blindfolded and with helmets over their ears, and were thrown into rudimentary cages, where torture continued in the form of drowning, beatings, sleep deprivation, sexual abuse, isolation and extreme temperatures, among others. In just over a year, the center reached 700 prisoners, all detained without charge or trial in sight.
The Pentagon said the prisoners were being treated “in a manner consistent with the principles of the Geneva Conventions,” which dictate the rights of prisoners of war. However, at the same press conference, the then chairman of the Joint Chiefs of Staff, Richard Myers, said that these conventions “do not apply to the conflict with Al Qaeda,” since the Bush Administration did not consider them “war criminals,” but “illegal combatants.” A terminological issue that, in essence, denied their rights.
Four years later, in 2006, the Supreme Court would rule that indefinite detentions did, in fact, violate the Geneva Conventions. The decision led the administration to look for an alternative, and achieved approval in Congress of the Military Commissions Law, which would serve to bring prisoners before military courts and give the appearance of legality. In 2009, the Obama administration changed the law, saying it de facto denied detainees habeas corpus, the legal institution that prevents indefinite and arbitrary detention.
It was around that time that lawyer James Connell was offered to lead the defense of Ammar Al-Baluchi, one of the five accused of plotting and planning the attacks that killed 2,977 people on September 11, 2001. When he accepted it, he was aware of the impossibility of having a fair trial in Guantánamo. However, “if I had not stepped forward, I would never have had the opportunity to take sides in one of the main injustices of our time,” he says in an interview in Camp Justice, the area where the two current courts in Mexico are located. Guantanamo.
Since his client was formally charged in 2012, he has been taking the same flight almost weekly to attend pretrial hearings. For more than a decade, his work has focused on trying to exclude the evidence presented by the government against Al-Baluchi, as it is based on confessions he gave to the CIA conditioned by torture.
The litigation process has been prolonged because most of the prosecution’s evidence is based on classified information, only accessible to the defense after passing through government authorization. Also, due to the difficulty of bringing witnesses to the island, due to the delays caused by the coronavirus pandemic and due to the repeated changes of the judge presiding over the case. “In 2014, I thought the trial would come within a year. Since that failed prediction, I have given up making any more predictions,” he jokes.
Nor do the victims see the judicial horizon clear. “A long time has passed and we still do not have justice, the entire process has been devastating for our family,” says a 26-year-old woman, who has come to Guantánamo for the first time together with her brother and prefers to maintain her anonymity. . Her father was in the north tower of the World Trade Center on 9/11 and survived the impact of the first plane, but was evacuated to the south building, where he did not survive the second attack. “I trust in the rule of law, and I want these trials to come to an end, but nothing can give me back the life I could have had.”