A Funny Thing Happened on the Way to Guantanamo

Trump’s momentary flirtation with Guantanamo only served to expose its failures and the hypocrisy of Republicans’ fight to keep it open.

A Guantanamo detainee closes a door at the U.S. detention facility at Guantanamo Bay, Cuba, October 2007. (AP/Brennan Linsley)
A Guantanamo detainee closes a door at the U.S. detention facility at Guantanamo Bay, Cuba, October 2007. (AP/Brennan Linsley)

President Donald Trump’s flirtation with sending the suspect behind the October 31 New York City truck attack to the U.S. detention facility at Guantanamo Bay, Cuba, exposed yet another plank of Republican orthodoxy as nothing but political opposition to the Obama administration. GOP unity on the preference for military detention over the criminal justice system for terrorism suspects collapsed just as rapidly as they abandoned their lockstep opposition to any deficit increase now that they want to cut taxes for the rich. When it comes time to actually implement policy, not even Republicans believe their own spin on Guantanamo, and Americans shouldn’t either.

The political debate in the aftermath of the horrific terrorist attack in New York City last week felt much the same as it had after similar incidents during the Obama administration. On the night of the attack, Sen. Lindsey Graham (R-SC) said the suspect, Sayfullo Saipov, should be held as “an enemy combatant under the laws of war.” Graham went on to say, “You’ll never convince me that the best way to gather intelligence in this war … is reading them their Miranda rights.” Sen. John McCain (R-AZ), who campaigned for president in 2008 on a plan to close Guantanamo, followed the next morning by saying, “Take him to Guantanamo … [T]here’s no Miranda rights for somebody who kills Americans.”

Sen. Graham even duped his new golfing buddy into following his tune when President Trump said the day after the attack that he “would certainly consider” sending Saipov to Guantanamo. Trump then lambasted the criminal justice system, saying, “We need quick justice, and we need strong justice, much quicker and much stronger than what we have right now, because what we have right now is a joke and it’s a laughing stock, and no wonder so much of this stuff takes place.”

But then something completely unexpected happened: Saipov was indicted in federal court. Trump’s flirtation with sending Saipov to Guantanamo lasted only a few hours. To save face after this development, Trump actually made the argument that advocates for closing Guantanamo have been making for years. Using the military commissions systems “takes much longer than going through Federal system,” Trump said. Given his comments just the previous day, the president’s November 2 tweet was quite an indictment of the military commissions.

Trump was right on this last point. As of earlier this year, the federal criminal justice system has prosecuted and incarcerated 620 individuals on terrorism charges since 9/11. While not all of those cases are high-profile blockbusters, they include Osama bin Laden’s son-in-law, a former Guantanamo detainee, the man originally thought to be the 20th hijacker on 9/11, the failed shoe bomber, the failed underwear bomber, the failed Times Square bomber, and the mastermind of the Benghazi attack is on trial now in an Alexandria, Virginia, courtroom.

In sharp contrast to the hundreds of successful terrorism prosecutions in the criminal justice system, there have only been just eight convictions by military commissions in 16 years; three of those convictions have been overturned on appeal. The prosecution of Khalid Sheikh Mohammed and the other 9/11 conspirators that began in 2012 remains mired in pre-trial motions and there are doubts if there will ever be an actual trial. And just last week, further chaos erupted in the commissions when the chief defense counsel, Marine Brig. Gen. John Baker, was held in contempt in a dispute over Baker’s authority to release three civilian defense counsel due to a conflict over attorney client privilege that largely remains secret.

The notion that keeping suspected terrorists in the criminal justice system somehow impairs intelligence gathering is also not borne out by the facts. This issue was actually litigated during the Bush administration, when federal district judge and later Bush administration attorney general, Michael Mukasey, held that “the interference with interrogation would be minimal or nonexistent” if suspected terrorists were provided access to attorneys. That conclusion has proven true, as documents released this year showed that detailed information obtained from the failed underwear bomber after he had been given his Miranda rights proved crucial in the ultimately successful hunt for al-Qaida in the Arabian Peninsula terrorist Anwar al-Awlaki.

Another suspected terrorist who provided valuable intelligence after being advised of his rights is Ahmed Abu Khattala, the Benghazi ringleader now on trial in Virginia. Information that Khattala provided the FBI helped them capture a second suspect in the Benghazi attack, Mustafa al-Imam, who was seized in Libya late last month. One FBI agent testified at Khatalla’s trial that, “Mr. Imam, we didn’t know who he was until Abu Khattalah told us.” Oh, and Imam was also charged in federal court in Washington, D.C., after being brought to the United States.

In addition to being ineffective, military detention is also needlessly expensive compared to the criminal justice system. Ahmed Ghailani, the former Guantanamo detainee now incarcerated in the Supermax federal penitentiary in Florence, Colorado, costs roughly $75,000 per year to be imprisoned in the highest security prison in the United States. It costs the U.S. military more than $10 million per year to keep each one Ghailani’s former fellow Guantanamo detainees.

Concerns over its excessive cost are apparently now shared by Attorney General Jeff Sessions. He reportedly expressed dismay at the wide disparities in the expense of housing detainees at Guantanamo versus in the United States after visiting the detention center in March even though he repeatedly cast votes to bar Guantanamo detainees from being transferred to the United States during the Obama administration.

Republicans are not even trying to hide the naked political opportunism at the heart of their opposition to the Obama administration’s attempts to close Guantanamo. Sen. Graham said in the wake of the Saipov indictment, “If Obama had done this, there would have been a lot more Republicans out there.”

In order to score political points, Republicans have wasted billions of dollars on a detention center for terrorism suspects that has allowed the plotters of the 9/11 attacks to go unpunished despite being in U.S. custody for 14 years. This debate is certainly not over: Given the whiplash evident from Trump’s comments on Guantanamo last week, it is entirely possible he could change his mind again. But Trump cannot escape the facts and his own statements that clearly demonstrate the superiority of the criminal justice system and expose the political opportunism at the core of Republicans’ support for Guantanamo. The American people deserve better.

Ken Gude is a senior fellow on the National Security team at the Center for American Progress.

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Ken Gude

Senior Fellow