Thirteen Years After 9/11: How Expensive is Guantánamo Justice?

Imagine how the billions being spent by the U.S. on the never-ending imprisonment and proceedings against alleged 9/11 terrorists could be used to support health care and other social services in the U.S.—a first-hand report on what’s happening in Cuba.

After spending a week at Guantánamo Bay Naval Base (GTMO, or Gitmo) serving as an observer for the latest 9/11 military commissions proceedings and living out of a dingy military tent in nearly 100-degree weather, my overarching impression of Guantánamo is that—regardless of where one falls on the political spectrum—we are wasting billions on a process that is failing everyone’s goals and will likely result in further harm to the American people.

I was sent to Guantánamo as an observer for the Pacific Council on International Policy to report on the latest developments in the military commissions proceedings against the five alleged key 9/11 terrorists, including purported mastermind Khalid Sheikh Mohammed. Pacific Council is one of a handful of non-governmental organizations that have been authorized, for the benefit of the public and the commissions process, to send representatives to observe the controversial proceedings at Guantánamo, which are impossible to witness firsthand without government invitation.

My trip began with a surreal flight out of Andrews Air Force base on a plane carrying 9/11 legal teams, select victim family members and media and Observer representatives who spanned the political spectrum. Though we were there as observers, we had to be escorted in and around the courtroom and were prohibited from going anywhere near the detention facilities.

While these restrictions were disappointing, I still expected my time at Guantánamo to answer many questions. What would it be like to see the accused 9/11 terrorists? Were the Guantánamo proceedings fair? Was there evidence of torture?

After witnessing the proceedings, interviewing the legal teams and talking to the press and military personnel, these questions were drowned out by my realization that Guantánamo appears to be nothing more than an expensive and inefficient loop that has neither doled out punishment nor afforded a fundamentally fair process for the 9/11 proceedings. The only thing that it has done with certainty is cost the American people, financially and emotionally.

No Punishment. For those who want the alleged terrorists convicted, it’s been 13 years since 9/11 and there is no sign of trial on the horizon. Instead, the purported terrorists are being held in some of the world’s most expensive detention facilities, where they have private court trailers and costly legal teams, apparently including as many as 14-18 attorneys, analysts and specialists working for a single defendant in some cases. And these massive teams are doing a great job defending their clients—raising issues that will likely provide numerous grounds for appeal. Indeed, trial isn’t even close and the record is already pregnant with fundamental concerns about lack of access to information, the inadequacy of the military commissions process to afford basic justice, the FBI’s infiltration of the defense team and the torture of the accused.

No Process. For those who want basic fairness, despite Chief Prosecutor General Mark Martins’ admirable efforts, that’s not happening either. There is substantial evidence that the process lacks essential ingredients of fairness and that many of the accused have been mistreated.

Multiple defense team members claim that their clients were tortured and allege that the government has over-classified information to such an extent that they cannot provide their clients with a meaningful defense. Martins counters by explaining that he plans to make the prosecution’s case using public non-classified information.

Though it’s difficult to ask more of Martins, who does not ultimately control classification, his efforts only get us halfway and do little to address the torture allegations. A fair adjudication is not simply about one side telling their story. It is about both sides getting a meaningful opportunity to present their version of the facts. In a criminal proceeding, it is critical for an accused to be afforded a meaningful opportunity to confront the evidence against him.

No Closure. Nor are the Guantánamo proceedings providing closure. Circular debates and delays are the hallmarks of the 9/11 proceedings, which only prolong the pain and suffering of the victim’s families. Indeed, while I was at Guantánamo with other Observers and victim family members, we spent less time in court over the course of the whole week than you would normally spend in court during a single day. Seeing the accused sit in the courtroom was not fulfilling in the slightest, especially since they obviously knew that they were years away from any potential sentence. Indeed, the net result of the week’s proceedings was that the judge reversed course on one of his previous sua sponte decisions. Or, put simply, the proceedings went nowhere (and this didn’t seem to surprise counsel from either side). General Martins commented at the end of the week that “justice is not about a timeline.” But after 13 years, I wonder whether justice can be served, and if so, at what cost?

Billions Wasted. Perhaps the only thing we can be sure of when it comes to Guantánamo’s 9/11 proceedings is that Guantánamo is costing the American people an exorbitant amount of money. According to the government’s own figures, we are spending over $400 million per year holding the remaining Guantánamo detainees —more than half of which are already cleared for release. These detainees could be held at a high security facility in the U.S. for less than $12 million per year.

Even worse, the $400 million figure does not appear to reflect numerous other costs, including: (1) millions that we spend annually on the detainees’ massive defense teams; (2) the cost to bring detainees to sit in the $12 million courtroom (where I observed more than 20 military personnel in the courtroom area and another dozen or more outside of the courtroom, all there apparently for security); (3) the cost of the prosecution’s investigations; (4) the cost of the government’s efforts to block attempts to unwind the secrecy surrounding the alleged torture and mistreatment of detainees; and (5) the anticipated $100-150 million that we will need to invest in Guantánamo in the next few years to keep the camp open. Further, there are untold costs that are not shared with the public because they are deemed “classified.”

In sum, Guantánamo is furthering no one’s goals. We are paying heavily to ensure conviction of the 9/11 terrorists in a way that enables us to say that we tried them fairly and consistent with international law (if not the U.S. Constitution). The reality is that neither outcome is assured, and we are further victimizing the American people by wasting billions on a process that is likely to leave everyone dissatisfied and could taint the American legal system. It seems far more responsible to transfer the detainees to a high security facility on U.S. soil and afford them a more normal process. This has worked in other terrorist cases and would cost a fraction of what it costs now. It might also produce results in the 9/11 proceedings, unlike the military commissions proceedings in Guantánamo.

Vanessa Adriance provided research about Guantánamo for this piece.

This piece originally appeared on the The Huffington Post

Photo from Flickr user The National Guard under license from Creative Commons 2.0





Perlette Michèle Jura is a partner at Gibson, Dunn & Crutcher LLP, where she cochairs the law firm’s Transnational Litigation Group.