The Future of Guantánamo Bay

The Center for Ethics and the Rule of Law (CERL) at the Annenberg Public Policy Center of the University of Pennsylvania, together with the Middle East Center, is delighted to host Pulitzer Prize-winning author Spencer Ackerman for a conversation on his book Reign of Terror. The New York Times notes that this work “…[b]rilliantly [t]races the [c]ourse from 9/11 to President Trump.” Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania Law School and CERL faculty director, will moderate the talk. 

The event, which is open to conference participants as well as the general public, will take place at Perry World House (3803 Locust Walk, Philadelphia, PA 19104) and on Zoom. In-person attendees will have the opportunity to get their books signed after the event.

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Session Chair: Prof. Claire Finkelstein

In this session, we will discuss the U.S. withdrawal from Afghanistan and consider how the clear intent of the current administration to end U.S. military involvement in Iraq and Afghanistan impacts what the United States could or should do regarding the military commissions and the GTMO detention facility. Can we now move beyond a wartime paradigm to stop terror and instead adopt a law enforcement model?  Does precedent mandate that, since we are now in a state of armistice with the Taliban, the U.S. must release all uncharged detainees captured as part of the conflict in Afghanistan?  Does this answer change if these individuals were involved in the attacks on 9/11? Does the rapid rise of the Taliban, coupled with the attacks by ISIS-K, support a continuing need for the military commissions and detention facility, or might these developments create an enabling environment for abuse of this option, if permitted?

Session Chair: Prof. Harvey Rishikof

This session will evaluate the legal authority for the continued detention and prosecution before military commission of the GTMO inmates. Military commissions have traditionally been wartime, in-the-field military tribunals for the trial of enemies accused of violating the rules of war. The military commissions at Guantánamo Bay were created in the aftermath of 9/11 attacks to try suspected terrorists associated with the event. In November 2001, President George W. Bush issued a Military Order directing the Secretary of Defense to oversee the detention and trial of noncitizens who were suspected of participating in terrorist activities. Guantánamo Bay was selected as the site of detention and trial, so that detainees could be removed from U.S. jurisdiction and deprived of constitutional protections normally afforded in Article III courts. Further, Guantánamo military commissions have less stringent evidentiary rules than Article III courts and courts martial, often permitting the use of controversial evidence that was allegedly obtained through the use of torture. 

Over the last two decades, only eight detainees have been convicted by the military commissions, and many are still awaiting charges. This extreme inefficiency has resulted in decades of continued detention for many detainees, depriving them of access to a fair and speedy trial. In this session, members of the GTMO working group will discuss the role of the military commissions system, its failure in bringing about justice, and potential reforms in the future. In addition, this session will raise questions about the structure of the military commissions system more broadly. For example, is it just to prosecute non-state actors for violations of international humanitarian law? Similarly, should non-state actors continue to be labelled unlawful enemy combatants instead of either enemy combatants or criminal defendants? 

Session Chair: Col. Moe Davis

This session will evaluate the political and practical feasibility of using other U.S. jurisdictions to handle matters currently before the military commissions. Further, participants will discuss the roadblocks and potential pitfalls to using U.S. prisons on the mainland for the execution of sentences for detainees. This will include discussing the possibility of transferring detainees from the military commissions to federal courts for remote guilty pleas, full contested trials, and/or sentencing proceedings. Participants in the session will also discuss the potential implications of any physical transfer to a U.S. location on detainees’ immigration status, and they will raise questions about the constitutionality of any death sentence that may be imposed in a military commission or federal court.

For many years, detractors of the military commissions have advocated the transfer of detainees awaiting trial before the commissions to federal court. An attempt to move Khalid Sheik Mohammed to federal court in the southern district of New York was met with outrage and opposition. In addition, the 2012 NDAA began an annually renewed restriction on DOD funds for the purpose of transferring GTMO defendants into federal court. Other obstacles to transfer have to do with GTMO’s history of torture and the resulting inadmissibility of evidence gained under torture in federal court.

One option is to separate those detainees prepared to enter guilty pleas, regardless of the forum, from those awaiting trial before the commissions. As some scholars have argued, guilty pleas might be conducted by video, with defendants remaining at Guantánamo. But with the taint in evidence, as well as the protracted length of these defendants’ detention, it is unclear whether such pleas would be admissible in federal court.

Session Chair: Mr. Adam Thurschwell

Throughout the war on terror, there has been a persistent debate about the way to balance national security interests with the need for a transparent government. Within this broader debate, the problem of over-classification has pervaded attempts to prosecute detainees in Guantánamo Bay. Although the defense counsels for these detainees need sufficient information to develop and support their arguments, the availability of information must be balanced against the government’s interest in ensuring that classified information does not fall into the wrong hands. Both the prosecution and the defense, however, appear to agree that over-classification has delayed the start of trial progress of the cases being brought against detainees who are being held in Guantánamo Bay. 

In this session, participants will discuss the United States’ classification practices in the context of the military commissions system and Guantánamo Bay. If over-classification has led to stalled trials and cumbersome legal procedures, as well as dramatically increased costs for U.S. taxpayers, should the U.S. rethink its approach to weighing the costs and benefits of its precautions from the standpoint of national security? The session will also consider whether transparency and the open availability of information should be balanced and weighed against the government’s interest in protecting classified information. Government transparency is vital to the functioning of a democracy, and in an ideal world, there would be no need for secrecy. However, given pragmatic concerns about the risk that increased transparency might pose to national security, how should the United States move forward to address this current impasse?

Session Chair: Mr. Alberto Mora

Closing the Guantánamo Bay detention facility would be the first step in a process that must also include a national pursuit of accountability and acceptance of a continuing responsibility for U.S. abuses.

This session will address what it would mean for the United States to take responsibility for its past actions. Various factors pose complications when striving for accountability. Nonetheless, there are concrete steps that Congress and the president can take in holding the U.S. accountable for its actions in Guantánamo Bay. CERL working group members will also discuss steps that could be taken, such as: (1) a Senate Judiciary Committee report; (2) an executive order that establishes the future of Guantánamo; (3) the need for the U.S. to commit to complying with international humanitarian law. Why is holding the U.S. accountable for the atrocities and violations committed at Guantánamo pertinent to national security? Can these future steps repair the United States’ tarnished international reputation? What are the implications if the United States never ultimately takes accountability?

This session will also discuss the responsibilities the U.S. will have toward detainees after they are transferred to another country or tribunal, in addition to the history of efforts that have been made to transfer detainees to jurisdictions outside of the United States. In particular, it will examine the responsibilities that the United States may have toward transferred detainees under domestic and international law, such duties of rehabilitation, compensation, and continuing responsibility for health care. Or, alternatively, would these duties transfer to other countries or international tribunals after they have taken custody of a detainee? With detainees who are cleared for transfer, there will be questions as to what the state of negotiations with other countries, coupled with the legal and political hurdles to accomplishing future transfer, would look like. Under those circumstances, would there be room for the International Court of Justice to step in? Alternatively, would it be preferable to create a special international commission to play a role in handling affairs related to the transfer and/or release of detainees?

The Center for Ethics and the Rule of Law (CERL) at the Annenberg Public Policy Center of the University of Pennsylvania, together with the Middle East Center, is delighted to host Pulitzer Prize-winning author Spencer Ackerman for a conversation on his book Reign of Terror. The New York Times notes that this work “…[b]rilliantly [t]races the [c]ourse from 9/11 to President Trump.” Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania Law School and CERL faculty director, will moderate the talk. 

The event, which is open to conference participants as well as the general public, will take place at Perry World House (3803 Locust Walk, Philadelphia, PA 19104) and on Zoom. In-person attendees will have the opportunity to get their books signed after the event.

About the book: For an entire generation, at home and abroad, the United States has waged an endless conflict known as the War on Terror. In addition to multiple ground wars, it has pioneered drone strikes and industrial-scale digital surveillance, as well as detaining people indefinitely and torturing them. These conflicts have yielded neither peace nor victory, but they have transformed America. What began as the persecution of Muslims and immigrants has become a normalized, paranoid feature of American politics and security, expanding the possibilities for applying similar or worse measures against other targets at home. A politically divided country turned the War on Terror into a cultural and then tribal struggle, first on the ideological fringes and ultimately expanding to conquer the Republican Party, often with the timid acquiescence of the Democratic Party. Today’s nativist resurgence walked through a door opened by the 9/11 era.

Reign of Terror will show how these policies created a foundation for American authoritarianism and, though it is not a book about Donald Trump, it will provide a critical explanation of his rise to power and the sources of his political strength. It will show that Barack Obama squandered an opportunity to dismantle the War on Terror after killing Osama bin Laden. That mistake turns out to have been portentous. By the end of his tenure, the war metastasized into a broader and bitter culture struggle in search of a demagogue like Trump to lead it.

A union of journalism and intellectual history, Reign of Terror will be a pathbreaking and definitive book with the power to transform how America understands its national security policies and their catastrophic impact on its civic life. — Provided by publisher.

About the author: For nearly the entire War on Terror, Spencer Ackerman has been a national-security correspondent for outlets like The New Republic, WIRED, The Guardian and currently The Daily Beast. He has reported from the frontlines of Afghanistan, Iraq, and Guantanamo Bay. He shared in the 2014 Pulitzer Prize for Public Service Journalism for Edward Snowden’s NSA leaks to The Guardian, a series of stories that also yielded him other awards, including the Scripps Howard Foundation’s 2014 Roy W. Howard Award for Public Service Reporting and the 2013 IRE medal for investigative reporting. Ackerman’s WIRED series on Islamophobic counterterrorism training at the FBI won the 2012 online National Magazine Award for reporting. He frequently appears on MSNBC, CNN, and other news networks.

COVID-19 Protocol: All attendees will be REQUIRED to wear a mask and must show either their Green PennOpen Pass (Penn faculty, students, postdocs, staff, and badged contractors) or Green PennOpen Campus (event participants, day visitors, vendors, and non-badged contractors).