Last week the prosecutor in the Guantanamo Bay military commissions reportedly initiated charges against Riduan bin Isomuddin, a 53-year-old Indonesian known as “Hambali.” The US captured Hambali in Thailand in 2003, held him in secret detention, and then transferred him to Guantanamo in 2006 where he has been held ever since. He is accused of directing the 2002 Bali nightclub bombings and the 2003 attack on the JW Marriot in Jakarta. The allegations against Hambali are serious, and if there is sufficient evidence to support them he should be prosecuted. But a Guantanamo Bay military commission is the wrong place.
The Guantanamo military commissions are a failed experiment in alternative justice. Originally created to get around existing federal due process rules, the commissions have been plagued by procedural problems and questions over the applicable law.
The case against five suspects accused in the September 11, 2001 attacks, one of three currently taking place before the commissions, is headed into its fifth year of pretrial hearings, with a trial date still years away. The slow pace is the result of government secrecy about the defendants’ torture in CIA custody, the novel nature of the commission’s untested rules and procedures, and logistical difficulties associated with holding hearings on an island several hundred miles from the United States.
The case against Hambali is likely to suffer a similar fate. Like the defendants in the September 11 case, Hambali was held for years by the CIA and tortured. A still partially classified summary released in 2014 of a much larger Senate Intelligence Committee report does not say exactly what happened to Hambali, only that he was subjected to the CIA’s “enhanced interrogation techniques.”
One interrogator told Hambali that the US would never let his case go to court because “we can never let the world know what I have done to you,” according to the summary. Other detainees subjected to the CIA’s “enhanced interrogation” were shackled in painful positions for long periods of time, slapped, slammed into walls, kept nude or diapered, forced into small confinement boxes, and subjected to sleep deprivation and dietary manipulation. At least five were also subjected to “rectal feeding” or “rectal rehydrations” according to the summary, whereby they were fed or hydrated without medical necessity through a tube in their anus.
Bringing the Hambali case in the military commissions will result in excruciating delays and deny the defendants a fair trial. Already it is clear that any defendants convicted in the commissions will have numerous grounds to appeal. Speedy trial concerns will surely be at issue in Hambali’s case given that US has already held him for 14 years without charge. The commissions also fail to adequately protect attorney-client communications and permit the introduction of coerced evidence. Three of the eight convictions obtained in the commissions have already been completely overturned and three others partially because prosecutors brought charges that appellate courts later found could not be prosecuted as violations of the laws of war.
There is still time to reverse course. Just because charges have been initiated in the commissions does not mean they will necessarily go forward. A military convening authority still needs to approve the charges and refer the case for prosecution—a process similar to issuing an indictment in federal court. Like the September 11 case and others that have been tried in the commissions, the Hambali case should be brought in US federal court, which have decades of precedent and history trying complex terrorism cases.
US law currently bars the transfer of prisoners from Guantanamo to the US for continued detention or trial but this restriction, at least on trials, should be lifted. Guantanamo Bay military commissions not only make a mockery of the US court system, but they deprive the victims and family members of horrific attacks what many want most—justice.