Office Hours: Will Guantánamo See Its First Execution?

If President Barack Obama remains committed to putting Guantánamo behind us, he has an odd way of showing it. On Wednesday, November 9, in the first military tribunal to open on Mr. Obama’s watch, Guantánamo officials arraigned Abd al-Rahim al-Nashiri for allegedly masterminding the October 2000 attack on the USS Cole that left 17 American sailors dead—a capital offense. Al-Nashiri’s commission goes forward in mid-January, which means it coincides with the ten-year anniversary of the detention center itself. Should the Guantánamo commission declare al-Nashiri guilty, the President will find himself in the awkward position of presiding over the first military execution there.

One can only imagine the headlines emblazoned across media around the world: “GUANTÁNAMO EXECUTION: Obama Puts to Death Detainee U.S. Tortured.”

How in the world has this come to pass?

Much of the responsibility belongs to the Bush-administration. Al-Nashiri is no ordinary defendant. Captured in the United Arab Emirates in 2002, he was transferred to CIA custody and taken to black sites in Afghanistan and Poland where he was waterboarded, threatened with an electric drill and mock execution, and warned that his family would be treated similarly if he did not tell his interrogators what they wanted to hear. After arriving at Guantánamo in 2006, al-Nashiri retracted a confession given under torture about his leadership of the Cole attack. The strongest evidence against him now appears to consist of second-hand hearsay (inadmissible in federal court): Salim Hamdan, the convicted driver of Osama Bin Laden, told an FBI agent that he overheard al-Nashiri boasting of planning the Cole bombing while at an al-Qaeda guest house in Afghanistan back in April 2001. The degree of coercion that produced THAT information is anybody’s guess. 

Some of the responsibility rests with Congress. Determined to maintain and exploit the fear that allowed the American public to turn a blind eye on Bush administration war crimes, conservatives in Congress have managed to convince hitherto rational individuals like New York City’s mayor that trying accused terrorists in federal court would be too dangerous, too costly, and too lenient, notwithstanding the record of successful federal terrorism prosecutions and the fact that sentences in such cases have tended to be far more severe than those meted out by military commissions. In the case exemplifying the supposed inability of the federal court system to handle terrorist crimes, Ahmed Khalfan Ghailani, the alleged planner of the 1998 east Africa embassy attacks, was given a life sentence, while Salim Hamdam, tried at the last military commission before President Obama shut the system down, was given five months in addition to time already served (the charges on which the two were convicted were the same: material support, or conspiracy). The longest sentence handed down at Guantánamo is nine months, to Australian David Hicks.

As cowed now as they were in the immediate aftermath of 9/11, congressional Democrats are only too happy to play along. In December 2010, in its last act before relinquishing control to the new Republican majority, the Democratically-led Congress denied the Obama administration funding to transfer Guantánamo detainees to the United States to stand trial (as well as to buy or construct a prison for the detainees on U.S. soil)—provisions enacted without parliamentary debate and virtually without public notice. The policy is up for renewed this fall.

But surely much of the responsibility rests with Mr. Obama himself. In August 2007, candidate Obama told the Woodrow Wilson Center for International Scholars that as president he would jettison the Guantánamo commissions. As a venue for trying terrorists, the candidate observed, Guantánamo was a perfect failure. Mr. Obama vowed to “close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions,” thus demonstrating to all the world that “the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."

Election campaigns are aspirational, the challenges confronting presidents practical. Still, Mr. Obama insists that a series of reforms carried out after he took office have put the Guantánamo commissions on a par with federal courts and military courts marshal in terms of constitutional safeguards. Logic alone refutes him. If the standards are equal, why do we need both? Moreover, military tribunals have historically been objects of last resort rather than of political convenience. The al-Nashiri case exudes the whiff of an administration cherry picking the venue most likely to produce its favored outcome, hardly evidence of a judicial system depoliticized.

Furthermore, by allowing for appellate review while at the same time admitting hearsay evidence and ignoring the sixth amendment safeguard of confrontation, among other defects, the revamped commissions virtually guarantee that guilty verdicts will be mired in protracted appeal. In short, candidate Obama got it right: the Guantánamo commissions are unjust and unnecessary; they are not the path to the swift justice Americans seek.

Mr. Obama bears responsibility for the position in which he now finds himself in another sense. “Those who cannot remember the past are condemned to repeat it,” the philosopher George Santayana remarked. I doubt that history repeats itself, but there is ample evidence of it haunting those who ignore it. Why has Mr. Obama failed to deliver on his promise to close the Guantánamo prison?

The president cannot move forward on Guantánamo, I would suggest, because he has been unwilling to look back. The Guantánamo prison retains more public and political support today than at any time in its near decade-long history. Surely one reason for this is the fact that there has been no rigorous public accounting of the crimes committed there. And no account of how those crimes fit into more distant history.

Post 9/11 Guantánamo is not the historical anomaly we like to believe it is. In selecting Guantánamo as the place for a prison to hold detainees beyond the reach of U.S. constitutional protections, the Bush administration chose a site that had been used that way before—in the 1990s under presidents Bush and Clinton, when as many as 85,000 Haitian and Cuban refugees were detained behind barbed wire at Guantánamo Bay, in two separate episodes, some for up to nearly two years. That policy, in turn, dates back to the late 1970s, when US immigration officials first considered using Guantánamo as a holding facility for Haitian boat people unwanted in Florida on the same grounds: with no due process at the bay, the United States could process the refugees out of sight of prying journalists and human rights lawyers. And so the record goes.

An American public armed with the facts about recent and more distant U.S. activity at Guantánamo would seem less likely to remain complacent about it. An informed, galvanized public is the sine qua non for shuttering both the prison and the military commissions, and thereby saving Mr. Obama from compounding Guantánamo’s and America’s notoriety.

Jonathan M. Hansen, a historian at Harvard University, is the author of the new book Guantánamo: An American History.