Carly Gordenstein (C'20, G'21) is a 2020 graduate of Georgetown College, where she earned her B.A. in government with minors in Arabic and religion, ethics, and world affairs. She is currently a first-year student in the Conflict Resolution M.A. Program at Georgetown University. Carly has travelled to Guantanamo twice to witness the 9/11 trial, in August 2016 and September 2019.
There are a few cases currently being tried at Camp Justice in Guantánamo Bay, the most notable being the case of United States v. Khalid Sheikh Mohammed, et al., which charges five defendants in their connection to the September 11 attacks. This case came as a result of the Military Commissions Act of 2006 and charges the defendants as “unlawful enemy combatants.” This classification precludes the men from the rights afforded to citizens in the U.S. legal system or “prisoners of war” in the international legal system. These men were taken into CIA custody during the Rendition, Detention, and Interrogation (RDI) program that began in 2003. The RDI program involved the notorious enhanced interrogation techniques (EIT), often described by human rights critics and the general public as torture. The judge in this case, as well as the U.S. Supreme Court, has avoided making an official ruling on this distinction, making it impossible to legally qualify the difference at this time. I contend that in accordance with international and domestic legal and ethical standards, the program was undoubtedly torture.
Critics of Guantánamo often describe it as an illegal show trial, citing the horrific torture these men have endured throughout their indefinite incarceration as reason for the case to be dismissed. Facets of American public discourse criticize the government's actions at Guantánamo, causing increased pressure for the closure of the prison and federally issued apologies. However, a plausible alternative to the trial might not exist. Could the United States, conceivably, admit to the egregiousness of its wrongdoings and promise for more fair actions in the future while also allowing these men to return to their home countries? This seems unlikely. For the sake of clarity, I do not necessarily condone the reality of this trial; rather, I believe there is not a more suitable option. We must not forget the mentality of the intelligence community immediately following 9/11—the fear and urgency that invoked a necessity to respond and protect. The unprecedented actions matched an unprecedented time, albeit not an excuse for the divergence from international standards of practice. We must use the trial as a means to address these issues and publicly acknowledge our errors while prosecuting a crime that deserves its day in court.
We must use the trial as a means to address these issues and publicly acknowledge our errors while prosecuting a crime that deserves its day in court.
Two elements define Guantánamo: the CIA’s RDI program and the trial. In my opinion, the former proves ethically impermissible, while the latter serves as an attempt to rectify that. It is important to note that evidence obtained from the EIT interviews is not being used in this trial. The evidence from the detainees that has been produced by the prosecution is entirely from their time in CIA and FBI custody after a “clean team” was brought in. This happened months after the EIT program had last been used and the detainees were informed of their right to say nothing without fear of punishment. Of course, there is the argument that after being tortured, one can never be questioned fairly. But this is an example of the government trying to distinguish the trial from the rendition and detention program.
The CIA’s program was not only problematic for the treatment that these men endured but also because it established alarming precedents. In 2002, President George W. Bush formally abrogated the Geneva Convention protections for members of Al-Qaeda. He argued that Article IV of the Geneva Conventions, which defines who is a protected person in armed conflict, was not applicable, as these detainees will be considered unlawful enemy combatants rather than prisoners of war. Despite the presence of unconventional actors, the War on Terror is a military conflict, and therefore, the spirit of the Geneva Conventions should hold. The Military Commissions Act of 2006 allows the designation of unlawful enemy combatant to justify torturous tactics against anyone deemed as such. In the War on Terror, often categorized by its lack of a distinguishable enemy, there is overwhelming discretionary power provided to the U.S. government to determine who is considered an aggressor. This discretionary power allows the United States to strip individuals of the rights afforded to them by international law that would exist in traditional conflict. Guantánamo Bay, and the actions that took place there, must serve as a reminder to our nation that intelligence gathering must be done within the confines of the law, and the law must not be altered to fit the confines of covert operations.
Guantánamo Bay, and the actions that took place there, must serve as a reminder to our nation that intelligence gathering must be done within the confines of the law.
The diversion from American values as set forth by the Constitution, such as the right to a fair and speedy trial and the right against cruel and unusual punishment, that was exhibited immediately post-September 11, 2001 cannot be unwritten. To refuse to confront America's abominable actions, and rather to justify these missteps as a crime of passion, does a disservice to decades of international and domestic human rights norms and laws. The U.S. government's promises of a more just retaliation do not guarantee that they will, in fact, be fair. The United States must create concrete changes, while acknowledging that any improved response will never truly absolve this history. Any publicly available data on the EIT program states that it did not produce unique intelligence and therefore did not fulfill its mandate. Evidently, it was a failure on every front—and it must not be repeated.
The military commissions do not provide an entirely equal and unbiased legal recourse, but they do offer the most feasible way forward that most closely mirrors the principles of a fair and unbiased trial by jury. A trial provides five men, accused of carrying out the largest terrorist attack on American soil, their day in court. While this trial is neither speedy nor entirely fair, it is a better alternative than doing nothing. Beyond these reasons, it is the only politically plausible course of action. Ethical permissibility is heavily dependent on circumstance. If we could rewind history and detain and interrogate these men differently, we should. But since we cannot, we must do everything in our power to move forward under the spirit of the law, which in this case, means a trial for those accused of committing a crime. Given the political and security restraints that this contentious case warrants, the military commission for these detainees is our most ethically acceptable option moving forward.