On Bringing the Guantanamo Detainees to Trial
Within the Existing US Court System
By Gordon Cucullu
November 17, 2008
That statement usually follows “close Gitmo” in pronouncements of president-elect Barak Obama, Senator John McCain, Greyhound bus-fulls of trial lawyers, and much of the general public. It seems so clean and simple: charge them, try them, sentence or release them. End of story.
Alas, like most human endeavors, this situation is far too complicated to dismiss with simplistic formulae.
Picture this: Afghanistan, late 2001. Fewer Special Forces soldiers and CIA para-military operators than would fill one of those busses are advised legions of Northern Alliance warriors and Pashtu fighters in the southeast. Supported by intense, precise air power these small teams accomplished something in weeks that neither the British Empire or the Soviet military could for decades. They liberated Afghanistan.
Tens of thousands of Al Qaeda and the Taliban were dead, running for their lives, or captured. In an ordinary conventional war the battlefield is a chaotic place. In Afghanistan it was pandemonium. The handful of Americans on the ground were – quite properly – preoccupied with their core mission: destroy the enemy forces. Neither handling of the enemy nor interrogation were part of their duties.
Late in the brief war starved, wounded, and dispirited foreign fighters and native Taliban surrendered first by scores, then hundreds, and ultimately by the thousands. The regime had come unraveled quicker than anyone predicted, flying in the face of media and military “experts” who predicted “tens of thousands of American body bags” and U.S. forces’ inability to fight in the “fierce Afghan winter.”
Abruptly, Coalition forces were tasked with the problem of separating out the truly hard-core, committed jihadists from the draftees, the foreigners from the Afghani, because it was vital that the group that attacked America on September 11 not be let free to renew the fight. Some estimated that as many as 70,000 enemy combatants had been captured. Many were detained attempting to cross into Pakistan and others were given up to authorities by local residents. Among critics’ charges are that the U.S. paid a “bounty” for detainees and thus encouraged locals to settle personal scores by “selling” enemies to the Coalition.
In the event, the task of sorting all these people out was overwhelming.
Trained linguists were scarce, combatants had been herded into make-shift camps and compounds, such as the ancient fortress of Qala-i-Jangi. Given that neither the Taliban nor al Qaeda wore uniforms, insignia or rank, or complied with any of the several demands of the Geneva Conventions, mere identification was a serious, basic problem.
Amidst all the confusion no-one called upon a crime scene investigation team. This was war – hard, bloody, chaotic, and messy as only combat can be. For those few interrogation teams on the ground priorities were to identify and capture high ranking members of the Taliban and al Qaeda and to conduct preliminary interrogation to learn if other attacks against America were in the works.
Now, years later voices clamor for these enemy combatants to be brought before perhaps the most stringent and defense-oriented legal system in the world (innocent until proven guilty, rights of the defendant, full disclosure of evidence, and strict evidentiary rules) to have their situation adjudicated. The blunt, unfortunate truth is that you can’t get there from here.
That being the case, many advocates for the detainees – attorneys, organizations, and politicians – demand swift trial or outright release. They argue that if the U.S. government cannot bring forth evidence of the quality necessary to convict then any detainees not formally charged ought to be released. Again, this is a simplistic solution that belies hard facts.
Understand that the U.S. government has already released or transferred more than 2/3 of the original group of fewer than 800 detainees to countries of origin. The recidivism rate, as readers of Inside Gitmo are aware, is alarming, considerably higher than criminals released from American prisons, where the return rate is deplorable.
Complicating the issue further are allegations that any statements made by detainees must be discounted or disallowed by a court because of alleged coercion, torture and abuse. While a few instances of abuse have been well-documented in the book, by and large treatment of detainees at Guantanamo has been humane. While some will contest this judgment – the UN has declared that merely being confined at Guantanamo consists of torture – multiple, independent investigations have established that abuse at Guantanamo is rare.
The most egregious case, that of detainee Mohammad al Qahtani, ISN # 063, proved to be an isolated though highly deplorable single instance of actual abuse.
While the government is pressing forward with trial through Military Commission – a process itself dismissed by detainee advocates as “kangaroo courts,” of approximately 80 detainees, a remaining 120-plus are not going to be charged because of insufficient evidence, or unwillingness by the government to risk compromise of highly classified intelligence sources.
Despite contrary allegations by supporters, these men are not hapless innocents or victims of vengeance-motivated bounties. They are committed jihadists, dedicated to murder of those they consider infidels, by definition virtually all of America, Western Europe, and other non-Muslims. Their ideological dedication permits – indeed encourages – them to kill civilians and non-combatants as part of the worldwide expansion of the extreme Whabbist form of Islam these men advocate.
Many are self-confessed and proudly proclaim their willingness to be martyrs to the cause. They brag that they have killed before and their single purpose in life is to kill again – preferably Americans. Others have been implicated in terrorist acts, supporting terrorism, or other war crimes through circumstantial evidence or classified sources. But a case against them cannot meet high U.S. criminal justice rules the ultimate quandary remains: what to do with them?
The idea of trial, acquittal, and possible release either into U.S. society (as a Federal judge has already order for 17 Guantanamo detainees) or release into the global jihad is unconscionable. Freedom inside America means that sleeper cells and active terrorists would be unleashed. Similarly, transfer to most other countries would mean release or escape back into the global fight where they would be able to practice their heinous skills.
These points and more – incarceration on U.S. soil, indefinite detention, and the quandary over defining terrorism as a crime or as a military act – are covered more fully in the book, Inside Gitmo.
The intent here is to alert readers that simple answers for complex issues rarely suffice and that ultimate resolution of the fate of Guantanamo detainees requires considerably more thought and discussion than can be found in sound bites and one-liners.
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"I've also been 'inside GITMO,' and Cucullu's riveting account shows why we've been safer with it
"Our new president should read it — twice — and take its truth-telling to heart."
"Every relevant military and civilian official should give Cucullu's analysis a fair hearing." 
"An explosive expos of what's really been happening - 'inside the wire' at Guantanamo. Gordon Cucullu - with his Special Forces background, thorough research and extensive visits to Gitmo - knows more about the now-infamous detention facility than any 'outsider.' This book is a must-read for all who care about how we protect ourselves from those who are dying to kill us." 
"Inside Gitmo is a book of incalculable importance. It lays bare the myths and the stakes involved in the campaign to shut down a facility that any objective reader must conclude is vital to our national security. Every policy-maker in Washington and every citizen across America should study this books brilliant first-hand reporting and its alarming findings." 
"Gordon Cucullu has written a lively work of history that fulfills its promise to explode 'the myths of Guantanamo Bay.' Anyone who wants to speak authoritatively about the Bush administration's detainee policies has to read this book." 
