If the Taliban prisoners released could have been prosecuted, they should have been
June 14, 2014
If the ultimate outcome of the Bergdahl exchange is to derail further efforts to empty Guantanamo of its prisoners and shut it down, it would be another in a long line of tragic mistakes related to Guantanamo.
Laura Pitter, acting senior national security counsel

Though questions have been raised about whether the Obama administration should have exchanged five Guantanamo detainees for Sgt. Bowe Bergdahl, one thing is clear: The decision shouldn’t impede U.S. efforts to close the prison at Guantanamo Bay, Cuba. The answer to what should be done with the detainees at Guantanamo should always have been to prosecute those against whom credible evidence exists and release the rest. Instead, the U.S. has held detainees at Guantanamo for nearly 12 years, virtually all without charge or trial in violation of international law, including those released last week in exchange for Bergdahl.

If there were crimes for which the five men could have been prosecuted, like all other Guantanamo detainees, they should have been. At least one of the five men exchanged for Bergdahl, Mulah Muhammed Fazil, is alleged to have committed war crimes against scores of civilians in Afghanistan before the September 11 attacks. Fazil surrendered to the Afghan Northern Alliance in late 2001, which later turned him over to the U.S. He could have been held as a prisoner of war under the Geneva Conventions until the end of 2002, when the armed conflict between the U.S. and Afghanistan ended. Or he could have been tried for war crimes by the U.S. or a third party such as the Afghan government that took power in 2002. Instead, he was sent without POW status to Guantanamo, and held illegally without charge ever since.

Another of the five, Mullah Norullah Noori, has been loosely connected to other crimes during the pre-9/11 period. The other three are believed to be senior Taliban commanders, but media reports indicate they are not connected to any specific wrongdoing.

But all this should have no bearing on the other detainees the U.S. has held in Guantanamo for years without charge or trial. They include the British resident Shaker Aamer, who has been in Guantanamo since February 2002 and slated for release by the administration for years. The UK has indicated it is willing to accept his return, allowing him to be reunited with his wife and four children, but he remains in Guantanamo.

The detainees also include Ahmed Mujstafa Diyab, a Syrian, who has been on a prolonged hunger strike. He is fighting the Defense Department’s force-feeding techniques in U.S. federal court, alleging that they cause him agony. Last month, a Federal District Court judge lambasted the military for using the techniques when other less painful methods were available, but said she had no choice but to allow the tube feeding to continue. Diyab is one of 78 detainees slated for release by the Obama administration and one of six that Uruguay has indicated it will accept.

The administration continues to hold 149 men at Guantanamo, only 10 of whom have been charged; seven of those are currently being prosecuted while the other three have been convicted. The current prosecutor has indicated in the past he would bring charges against only another seven more detainees, one of whom has since been charged. There’s no lawful justification for continuing to hold the 78 men, most of whom have been recommended for release for years, or any of the others the administration has not brought charges against.

But the U.S. record for justice at Guantanamo, even regarding alleged crimes committed against the U.S., has been abysmal. Ignoring for the moment that procedures at Guantanamo military commissions don’t meet international fair trial standards, the trial against the five men accused of the September 11 attacks has not even begun. It has been mired in the pre-trial phase for the past two years, stymied by having to litigate novel issues that would not be disputed in federal court and rules that make evidence essential to the defense classified, such as conditions of confinement during the defendant’s years in secret CIA custody. The actual trial is most likely years away; expected appeals will take years more.

President Obama and numerous senior civilian and military officials have made clear that keeping Guantanamo open hurts U.S. national security. Unfortunately, those opposed to the Bergdahl prisoner exchange or how it was conducted have responded by threatening to make it harder for the president to release or transfer further detainees – and thus effectively block efforts to close down the facility. Congress, the executive branch and the public should stay focused on ending detention without charge and the harm it has caused to global cooperation against terrorism.

Maintaining a detention facility intended to be outside of U.S. jurisdiction, failing to pursue fair prosecutions against people like Fazil who have been implicated in serious crimes, and instituting fundamentally flawed military commissions, all demonstrated fundamental disregard for the rule of law. If the ultimate outcome of the Bergdahl exchange is to derail further efforts to empty Guantanamo of its prisoners and shut it down, it would be another in a long line of tragic mistakes related to Guantanamo.

Laura Pitter is the acting senior national security counsel at Human Rights Watch.