The final 40 Guantanamo detainees are still waiting for their day in court, but a recent DC appellate court decision has put the privilege of due process in jeopardy. Can the U.S. regain the moral high ground with these indefinitely detained individuals acting as an indefinite stain on the robes of justice? Photo Credit: Congregation Shaare Emeth
On August 28, 2020, the United States Court of Appeals for the District of Columbia quietly determined the fate of the final forty detainees held at Guantanamo Bay. The Al Hela v. Trump case, brought against the Federal government by Abdul al Salam al Hela who is being held indefinitely at Guantanamo Bay, determined the Due Process Clause of the Fifth Amendment does not apply to aliens located outside the United States.[i] The decision on Al Hela v. Trump has put the privilege of the writ of habeas corpus, previously granted by Boumediene v. Bush, at risk.[ii] Assuming this decision is upheld, the final detainees at Guantanamo Bay will be denied the ability to challenge their indefinite detention under the Due Process Clause of the Fifth Amendment.
Formally revoking the right to due process is a massive setback for the individuals being held in the offshore prison, many of whom were subject to the Central Intelligence Agency’s enhance interrogation techniques detailed in the Senate Select Committee on Intelligence (SSCI) report on the CIA’s detention and interrogation program.[iii] Of the nearly 800 prisoners that passed through the detention center, the final 40 are considered the worst of the worst by the US government.[iv] But aren’t the worst offenders still entitled to their day in court? Doesn’t denying these individuals due process undermine the judicial system and our national values in one fell swoop? A nation is judged on how it handles itself in times of conflict, tragedy and stress, not on how it handles itself in times of peace and prosperity, and the United States’ War on Terror has challenged our integrity.
The challenge of counterterrorism is to maintain the moral high ground. The United States faces an enemy who has already done the ethical gymnastics to justify a political campaign that glorifies killing civilians as a tactic to reach its strategic goals. America has already relinquished much of its moral authority through the extensive use of torture against these detainees. The United Nations Special Rapporteur on torture explains, “the example set by the United States on the use of torture has been a big drawback in the fight against such practice in many other countries and throughout the world.”[v] The restriction of the Guantanamo detainees’ rights to due process in Al Hela v. Trump decision further damages America’s moral authority.
Adhering to due process is not without its own difficulties. Evidence collected through hearsay, or sources U.S. agencies do not want to unmask, or through torture is problematic and could be thrown out during trial. Cases could be dismissed due to legal technicalities. But terrorism is not a new phenomenon, and indefinite detention is not the only means of dealing with individuals who have supported or perpetrated these crimes. Prior to 9/11 the United States would arrest and try these individuals for breaking the law. The United States also has strong liaison relationships with a myriad of countries that could hold these individuals or try them.[vi] Guantanamo detainees have largely been transferred to other prisons around the world during the Obama administrations unsuccessful attempt to close the detention center.[vii] Of the forty remaining, twenty-three are held indefinitely under Law-of War detention and are not recommended for transfer, resigning them to a lifetime in Guantanamo bay.[viii]
The light at the end of the tunnel is the United States’ potential to learn from its mistakes. The revelations of the SSCI Torture Report aired the country’s dirty laundry and provided transparency and oversight to a program that desperately needed it. Likewise, America can and should recognize the devastating effects the Al Hela v. Trump decision will have on its counterterrorism program and challenge the ruling. The expectation of dignity under the law has been eroded in the years since 9/11, and the United States will have to aggressively pursue a revival of its moral standards if it hopes to reverse the damage done. Furthermore, the United States must remember the value of a public trial in exposing the horrors of terrorism, denying these groups a martyr to rally behind and steering away potential support.
Roughly a month after the Al Hela v. Trump decision, two British members of the Islamic State were brought to the United States to stand trial for their involvement in detention and torture of western hostages.[ix] El Shafee Elshsheikh, 32, and Alexanda Kotey, 36, referred to as “The Beatles,” were known for their brutality towards their prisoners. Now, two years after their capture in Syria in 2018, they will have their day in court.[x] This case shows progress, shining a light on the cruel, illegal actions of these men and allowing a judge and jury to decide their fate. Western audiences will be able to face these individuals and know that they are merely men, who can be served the same consequences as other criminals, rather than undefeatable monsters lurking in the shadows of the Western psyche. They will be forced to face the very system they were seeking to destroy, and that process will strengthen the system. Unfortunately, the crimes of forty forever prisoners in Guantanamo will remain unexposed, and these prisoners will continue to be a counterbalance on the scales of justice.
[i] Abdulsalam Ali Abdulrahman Al Hela v. Donald J. Trump, 2020 DC. App. No. 19-5079 (2020). https://www.cadc.uscourts.gov/internet/opinions.nsf/D0E6FA5B87B19006852585D2004F674C/$file/19-5079-1858799.pdf
[ii] Linda Greenhouse, “A Court Just Slammed the Guantanamo Gate Shut,” New York Times, September 10, 2020. https://www.nytimes.com/2020/09/10/opinion/guantanamo-due-process.html
[iii] U.S. Congress, Senate, Select Committee on Intelligence, Committee Study on the Central Intelligence Agency’s Detention and Interrogation Program, 113th Cong., 2d Sess., 2014, S. Exec. Rep., https://www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-document.html.
[iv] Greenhouse, “Guantanamo Gate.”
[v] United Nations, “After CIA Torture Revelations, US Must Now Recover Moral High Ground – UN Expert,” UN News, last modified December 11, 2014. https://news.un.org/en/story/2014/12/486042-after-cia-torture-revelations-us-must-now-recover-moral-high-ground-un-expert.
[vi] Oriana Zill, “The U.S. Embassy Bombings Trial – A Summary,” PBS, accessed October 12, 2020. https://www.pbs.org/wgbh/pages/frontline/shows/binladen/bombings/bombings.html.
[vii] New York Times. “The Guantanamo Docket,” Overview, last modified May 2, 2018. https://www.nytimes.com/interactive/projects/guantanamo/detainees.
[ix] Adam Goldman and Charlie Savage, “Islamic State ‘Beatles’ Jailers Are Charged in Abuse of Murdered Hostages,” New York Times, October 7, 2020. https://www.nytimes.com/2020/10/07/us/politics/beatles-islamic-state.html.
[x] Federal Bureau of Investigation, ISIS Militants Charged with Deaths of Americans in Syria (Virginia, 2020), https://www.justice.gov/usao-edva/pr/isis-militants-charged-deaths-americans-syria.