The Guantánamo experiment has failed.
Following the 9/11 attacks, the United States imprisoned hundreds without trial at Guantánamo and created a new military-commission system there to try terrorism suspects. The system lacked fundamental protections required for fair trials.
One of the first detainees charged in the new system — Salim Hamdan — challenged it all the way up to the Supreme Court, and won, forcing President George W. Bush to rewrite the system, this time with the help of Congress. Hamdan was then charged in the new system, and convicted in 2008 (I was co-counsel at his trial). But the new military trials were nearly as flawed as the old.
When President Obama took office, he and Congress revised the Military Commissions Act even further, but they remain fundamentally flawed, lacking independence and admitting inferior evidence like coerced testimony and hearsay. Last month, the federal appeals court in Washington overturned Hamdan’s conviction. The decision has serious implications for pending cases. It highlights the dangers of building a new legal system from scratch – you can get it wrong.
There has always been another option: federal courts. Hundreds of terrorism suspects have already been tried in federal court, including Ahmed Ghailani, who was transferred from Guantánamo and is now serving a life sentence for his involvement in the 1998 attacks on the U.S. embassies in East Africa. But bowing to political pressure, President Obama has repeatedly signed into law restrictions passed by Congress that bar the transfer of additional detainees to the U.S. for trial and make it difficult to repatriate some 90 detainees designated for release.
Those implicated in serious crimes should be prosecuted, but in time-tested judicial systems. If the president is serious about closing Guantánamo, he needs to work with Congress to lift the restrictions on transferring detainees. If Congress refuses, Obama should use his veto. Fair trials, and the release of those detainees who will not be tried, are the only way forward.