One subject was conspicuously absent from President Obama's State of the Union address this week: There were no new pledges to close the U.S. prison at Guantanamo Bay, Cuba.
Guantanamo is not a good news story for the president. One of the first things he did when he came into office was sign an executive order that promised to close the Guantanamo Bay prison within a year. And as the Obama administration starts its third year, administration officials say they think it is unlikely they will be able to shutter the facility before his term ends.
"Closing Guantanamo has turned out to be much more complicated than the administration thought it would be," said Matthew Waxman, a law professor at Columbia University who advised the Bush administration on Guantanamo. "It was easier to campaign on. And now they realize there are some really bad individuals down there that no one knows how to deal with."
Plenty Of Obstacles To Shutting The Prison Camp
To be sure, everything has worked against officials in the administration who have tried to close the facility. Third countries have been slow to accept detainees who have been accused of terrorism. Special military trials, known as military commissions, had been deemed unfair — so the administration put them on hold while they tinkered at the edges of the rules that governed them.
And then, in December, while Democrats still controlled the House, Congress passed a law that effectively bans the transfer of Guantanamo detainees to the U.S. — which, by extension, puts the brakes on any further civilian trials. The law is in force until the end of the fiscal year in September.
That's why, in spite of the administration's best intentions, there are still nearly 175 detainees languishing down in Guantanamo.
The Ghailani Case
Just hours before the president spoke to Congress this week, Ahmed Ghailani, the first Guantanamo detainee ever to be tried in a U.S. civilian court, was sentenced to life in prison with no chance of parole.
Back in November, a New York jury found Ghailani guilty of helping al-Qaida carry out the 1998 East Africa embassy bombings, in which 224 people died and thousands were injured.
Ghailani was brought to New York to stand trial long before Congress voted to block detainees from trials in the U.S. And he was brought to Manhattan to stand trial in a federal court for a very simple reason: A New York court had already found four other men who had been part of the embassy bombings guilty of the crime back in 2002. They are all serving life sentences here in the U.S.
Ghailani's case, because of the earlier trial, was supposed to be a lay-up. But the passage of time and complications stemming from Bush-era interrogation techniques ended up making the case a closer call. The New York jury acquitted Ghailani of more than 280 counts of murder and conspiracy, and found him guilty of a single count of conspiracy. The verdict was nothing if not controversial.
Critics of bringing detainees to the U.S. to stand trial pounced on the result. Republican Rep. Peter King of New York told reporters afterward: "This tragic verdict demonstrates the absolute insanity of the Obama administration's decision to try al-Qaida terrorists in civilian courts."
The Ghailani case proved more difficult to try than expected because it was riddled with extenuating circumstances, not the least of which were allegations that before Ghailani arrived at Guantanamo, he had been tortured while in CIA and U.S. government custody.
His trial provided the first opportunity for a civilian court to deal with the issue.
The Question Of Torture
Torture allegations have cast a quiet pall over potential trials for a handful of the Guantanamo detainees, including the alleged mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed. The thinking had been that torture could be seen by federal judges as a grounds to dismiss a case or acquit a defendant. No one was quite sure how to deal with the issue.
In Ghailani's case, torture made its presence known largely in terms of admissible evidence.
A confession Ghailani allegedly provided to authorities was barred because there was some question as to whether it was obtained through torture. A witness who claimed to have sold Ghailani the TNT needed for the embassy attacks also didn't testify. His name allegedly came up under harsh interrogation.
Federal Judge Lewis Kaplan dealt with the issue of torture directly during sentencing. He said that even if Ghailani had been tortured, it did not diminish the severity of his crime.
"Mr. Ghailani knew and intended that people would be killed as a result of his own actions and the conspiracy he joined," the judge said in sentencing Ghailani to life in prison without parole. The offense was "so horrific," he added, "it far outweighs other considerations."
While the process of getting Ghailani to prison was messier than the Justice Department would have liked, the end result was what prosecutors were looking for. He essentially got the same sentence he would have received had he been convicted on all of the counts originally leveled against him.
Trials, Review Process For Detainees
In the end, Ghailani's sentence — because it was so tough — could help pave the way for more civilian trials in the U.S., although it is still a hard slog. In the meantime, the administration has set in motion other ways to deal with detainees. Military trials, known as military commissions, are poised to begin again, under new rules that provide more protections for detainees.
In the coming weeks, President Obama is also expected to sign an executive order that sets up a review process for Guantanamo detainees. The order cuts two ways. On the one hand, there will be a process by which detainees can object to their confinement, but on the other hand, the review will essentially codify indefinite detention.
It says to detainees, essentially, the U.S. government is not sure when you are going to trial or even if you are going to trial, but the U.S. has set up a process that will allow you to contest the reasons the government says it is holding you. It is unclear exactly how it will work.
Attorney General Eric Holder keeps saying that civilian trials are still in the mix, but how that will work is unclear, too.