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December 05, 2016

Trump Should Watch The Military Commissions Before Continuing Them

This blog is cross-posted from Huffington Post.

Among the many questions Donald Trump will have to consider when he takes office in January is whether to keep trying to prosecute the five alleged masterminds of the 9/11 terror attacks in the military commissions at Guantanamo Bay. The case isn’t expected to go to trial until 2021 at the earliest.

Because the pre-trial hearings are hidden at Guantanamo, and because progress in the case is so mind-numbingly slow, it’s unlikely anyone advising Trump has ever actually seen one of these strange spectacles. But they should. Because what the hearings reveal is a complete failure of this makeshift justice system, invented and revised three times since the September 11 attacks. It has accomplished almost nothing.

Indeed, while federal courts in the United States have completed over 550 terrorism cases since 9/11, military commissions have completed just eight. Three of those have been completely overturned—and one partially overturned—due to fundamental legal problems. 

Perhaps the only significant thing the military commissions have accomplished is to highlight how the U.S. government’s torture of detainees has obstructed its ability to bring them to justice at every turn. It’s yet another reason Trump should think carefully before trying to bring back any of these so-called “enhanced interrogation” techniques. 

To be sure, it’s still not impossible to try these five self-proclaimed terrorists in a legitimate court of law. In 2009, the federal government transferred Guantanamo detainee Ahmed Ghailani to New York for trial in a civilian U.S. federal court. Accused of participating in the 1998 U.S. embassy bombings in Kenya and Tanzania, Ghailani was tried, convicted and sentenced to life in prison within a year and a half. 

Because he’d been tortured in CIA custody, the government agreed not to seek the death penalty, which would have focused attention on his mistreatment. And federal judge Lewis Kaplan ruled that the prosecution could go forward despite the abuse and the government’s delay in bringing Ghailani to trial. Although captured in 2004, Ghailani was kept in a secret CIA prison for two years and then brought to Guantanamo in 2006. 

Critics of the Obama administration back in 2009 were outraged that Ghailani was brought to U.S. soil to stand trial, claiming it would make the New York courthouse a terrorist target. In fact, the trial proceeded peacefully, without a single security disturbance or even the inconvenience of a street lane closure. 

The 9/11 trial, of course, is higher profile, at least in theory — although most people don’t know pretrial hearings are taking place at Guantanamo these days because they’ve dragged on for so long. But U.S. federal courts have successfully handled hundreds of terrorist trials on U.S. soil before, safely convicting and imprisoning the likes of al Qaeda leader Ramzi Yousef, perpetrator of the 1993 World Trade Center bombing and a nephew of Khalid Sheikh Mohammed; the so-called “shoe bomber” Richard Reid; and many others.

Since 2010, Congress has banned the transfer of Guantanamo detainees to the United States, even for trial. President Trump could perhaps convince members of Congress to change that, since it was largely instituted to stop President Obama from fulfilling his campaign pledge to close the offshore prison. 

Monday’s 9/11 hearing was centered on whether one of the detainees is physically able to sit in court without excruciating pain following the rectal surgery he needed after “aggressive” rectal searches performed on him in a CIA prison. 

More than 15 years after the September 11 attacks, this isn’t what any military official, let alone the commander in chief, wants such a historic case to be showcasing. Had it been brought in federal court, the trial would surely have been completed, and the American public would have seen justice done, years ago. While that time has been lost, there is still an opportunity to salvage U.S. credibility and honor the thousands of victims of the 9/11 attacks — by ending the military commissions and transferring the case against the men accused to an experienced, legitimate federal court.