Center for Ethics and the Rule of Law

Center for Ethics and the Rule of Law

The Future of Guantánamo Bay: Recovering the Rule of Law in the Detention Facility and the Military Commissions
November 11 -
12, 2021

The Future of Guantánamo Bay: Recovering the Rule of Law in the Detention Facility and the Military Commissions

November 11 -
 12, 2021

Co-sponsored By:

MEClogo

The Conference

Twenty years have passed since the 2002 opening of the Guantánamo Bay Detention Camp following the 9/11 terrorist attacks. From a former height of 780 detainees, at present there are thirty-nine remaining detainees, of whom only eleven have been charged with war crimes. The maintenance of the prisoners costs the U.S. approximately 445 million dollars per year, or roughly ten million dollars per prisoner, a sum that is vastly in excess of the cost of maintaining convicted criminals in maximum security prisons on the U.S. mainland. Many of the detainees have been awaiting trial before the U.S. Military Commission since the early days of the war on terror, and others languish indefinitely, without any expectation of appearing before the commission or even receiving formal charges. Stymied by the history of torture and abuse of detainees and the felt need to maintain high levels of classification, in two decades the commission has completed only eight cases (including five guilty pleas), with four of those convictions overturned on appeal. There have been no trials since the al Darbi guilty plea in 2014. Various members of the Biden administration have voiced strong support for shuttering the detention facility, notably the president himself as well as Secretary of Defense Lloyd Austin.

There is new progress relating to Guantánamo Bay and detainees from the War on Terror. Abu Zabaydah’s situation has risen to international attention since the U.S. Supreme Court agreed to consider his bid to obtain evidence related to his torture for introduction into a Polish proceeding. The Ninth Circuit decision in that case took a stance against the ability of the Biden Administration to disallow testimony by former CIA contract employees on state secrets grounds. And while those matters are under consideration, another detainee, Majid Khan, has delivered extraordinary testimony in his sentencing hearing before the Military Commission regarding the torture he underwent in U.S. custody. Meanwhile, the U.S. has cleared an additional three detainees for transfer, though when those transfers will actually occur is quite another matter.

Complicating forward progress in bringing evidence of U.S. detainee abuse to light and in shuttering the detention facility is the situation in Afghanistan, where the Taliban have taken over the government in the wake of the Trump negotiated and Biden implemented U.S. withdrawal from Afghanistan. The ISIS-K attacks at Kabul airport that claimed the lives of U.S. servicemembers, plus the Taliban’s apparent efforts to prevent such attacks, are strong evidence that despite the U.S. withdrawal from Afghanistan the war on terror will continue.

The withdrawal of U.S. forces in Afghanistan coincides with the 20th anniversary of the 9/11 attacks. The moment is propitious to undertake a full review of the legal and other challenges involved in closing the Guantánamo Bay detention facility. This national response to being attacked on 9/11 has included: the distortion of law to permit illegal acts; the creation and maintenance of an ineffectual military commissions system; the continued detention of uncharged individuals; the mistreatment of detainees in U.S. care; all coupled with a lack of accountability, both on an individual and a national level, for the damage to the rule of law. These abuses have had a negative effect on U.S. national security in multiple respects and have affected the standing of the United States in the international community.

The first step on the path to restoring the rule of law in the wake of the twenty-year war on terror is to resolve the status of continued detainees from that war and to wind down the stalled military commission process. To this end, the Center for Ethics and the Rule of Law (CERL) has convened a group of high-level subject matter experts from a variety of disciplines to consider the challenges posed by continuing operation of GTMO and to develop a legal blueprint for closing the prison.

From November 11-12, 2021, CERL will convene authors of this report to consider its findings, in conversation with academics, members of the military, and experts in national security, intelligence, human rights, and public policy during this two-day closed session conference. The conference seeks to engage participants in an open discussion of the findings of this report with a number of its authors in attendance to debate and discuss its principal recommendations. CERL’s report and ensuing conversation endeavor to strengthen the rule of law by honestly confronting our past and charting a course for the future.

Schedule

University of Pennsylvania

Download Full Schedule

Thursday, November 11, 2021


4:00–5:30pm
Public Book Talk

(PUBLIC) Book Talk with Spencer Ackerman

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.

REGISTER TO ATTEND IN PERSON HERE.

REGISTER TO ATTEND VIRTUALLY HERE


Friday, November 12, 2021


9:00 – 9:30 am Breakfast


9:30 – 10:45 am
Session 1 (By Invitation Only)

Welcome & Session One:
The U.S. Withdrawal from Afghanistan and Its Impact on the GTMO Detention Facility

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?


10:45 – 11:15 am Break 


11:15 am – 12:30 pm
Session 2 (By Invitation Only)

Session Two: The Authority for Detention and the Military Commissions at Gitmo

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? 


12:30 – 1:30 pm Lunch Break 


1:30 – 2:45 pm
Session 3 (By Invitation Only)

Session Three: Detainee Transfers to U.S. Jurisdictions

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.


2:45-3:15 pm Break


3:15-4:30 pm
Session 4 (By Invitation Only)

Session Four: The Impact of Classification on GTMO and the Military Commissions

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?


4:30 – 4:45 pm Break


4:45 – 6:00 pm
Session 5 (By Invitation Only)

Session Five: National Accountability and Responsibility to Detainees and the American Public

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?


Public Book Talk

Thursday, November 11, 2021


4:00PM – 5:30pm

Perry World House and Zoom


Public Book Talk with Spencer Ackerman

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.

REGISTER TO ATTEND IN PERSON HERE.

REGISTER TO ATTEND VIRTUALLY HERE

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).


Participants

Mr. Spencer Ackerman

National security reporter and editor, The Daily Beast; Author, Reign of Terror: How The 9/11 Era Destabilized America and Produced Trump

Mr. Antonio Aiello

Award-winning writer, editor, multimedia producer, and storyteller

Maj. Gen. John Altenburg

Partner, Greenberg Traurig LLP

Mr. Truman Anderson

McCain Papers Project, Arizona State University; former chief of staff to the late Senator John S. McCain

Mr. Omar Ashmawy

Staff Director and Chief Counsel, Office of Congressional Ethics

Brig. Gen. John Baker

Chief Defense Counsel, Military Commissions Defense Organization

Dr. Steven James Barela

Senior Research Fellow, University of Geneva

Ms. Tracey Begley

Legal Advisor for the Washington Delegation, International Committee of the Red Cross

Judge Harold Berger

Of Counsel and Managing Shareholder Emeritus, Berger Montague; Member, CERL Executive Board

Professor Iris Blandon-Gitlin

Professor of Psychology, California State University, Fullerton

Dr. M. Gregg Bloche

Carmack Waterhouse Professor of Health Law, Policy, and Ethics, Georgetown University; Co-Director, Georgetown-Johns Hopkins Joint Program in Law and Public Health

Dr. Susan Brandon

Founding Partner, SyncScience LLC

Mr. Jess Bravin

Supreme Court Correspondent, The Wall Street Journal

Professor Gary Brown

Associate Dean and Professor of Cyber Law, College of Information and Cyberspace, National Defense University

Mr. Braden Campbell

Doctoral Student, John Jay College of Criminal Justice; Project Coordinator, Project Aletheia

Maj. Rodrigo Caruco

Military Defense Counsel, Military Commissions Defense Organization

Mr. Charles R. Church

Attorney, Charles R. Church, LLC

Mr. William Craven

Member, CERL Executive Board

Ms. Debi Cornwall

Documentary Artist, Debi Cornwall Studio

Col. Morris “Moe” Davis

Colonel (Ret.), U.S. Air Force

Mr. Luke Elegant

Undergraduate Student, The University of Pennsylvania

Ms. Jennifer Elsea

Legislative Attorney, Congressional Research Service

Mr. Mark Fallon

Interim Executive Director, Center for Ethics and the Rule of Law

Mr. Benjamin Farley

Former law-of-war counsel, U.S. Department of Defense, Military Commissions

Ms. Arlene Fickler

Partner, Schnader Harrison; Member, CERL Executive Board

Professor Claire Finkelstein

Faculty Director, Center for Ethics and the Rule of Law; Algernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania Carey Law School

Professor Brenner Fissell

Associate Professor of Law, Hofstra University Law School

Mr. Adam Fitzgerald

Host, The Darkened Hour

Professor Laurel E. Fletcher

Chancellor’s Clinical Professor of Law, UC Berkeley, School of Law

Ms. Ashley Fuchs

Undergraduate Student, University of Pennsylvania College of Arts & Sciences

Mr. Stuart Gerson

Member, Epstein Becker & Green, P.C.

Dr. John Ghazvinian

Executive Director, Middle East Center, University of Pennsylvania

Professor David Glazier

Professor of Law, Loyola Marymount University – Loyola Law School

Professor Kevin Govern

Professor of Law, Ave Maria University School of Law; Member, Member, CERL Executive Board

Professor Kathleen Hall Jamieson

Elizabeth Ware Packard Professor of Communication, University of Pennsylvania’s Annenberg School for Communication; Director, Annenberg Public Policy Center

Ms. Pamela Hamilton

Global media consultant; former producer, NBC News

Ms. Andrea Harrison

Chair, ASIL Lieber Society

Professor Maria Hartwig

Professor, John Jay College of Criminal Justice

Ms. Gail Helt

Assistant Professor of Political Science, Director of the King Security and Intelligence Studies, King University

Ms. Veronica Hinestroza

Senior Legal Advisor, Fair Trials

Professor Peter Jan Honigsberg

Professor, University of San Francisco School of Law; Author of A Place Outside the Law; Forgotten Voices from Guantanamo (Beacon Press)

Professor John G. Horgan

Distinguished University Professor, Department of Psychology, Georgia State University

Professor Kristine A. Huskey

Clinical Professor of Law; Director, Veterans Advocacy Law Clinic, University of Arizona Law School

Mr. Brian Michael Jenkins

Senior Advisor to the RAND President, RAND Corporation

Mr. David Jonas

Partner, FH+H; Member, CERL Advisory Council

Mr. Richard Kammen

Partner, Kammen & Moudy Law Firm

Professor Firoozeh Kashani-Sabet

Walter H. Annenberg Professor of History, University of Pennsylvania College of Arts & Sciences; Member, CERL Advisory Council

Professor Christopher E. Kelly

Associate Professor, Saint Joseph’s University

Mr. Brian Knappenberger

Filmmaker/Director, Director of the Netflix docuseries Turning Point: 9/11 and The War on Terror

Lt. Stephan Margolis

CEO, Margolis Solutions, Inc

Rear Adm. James E. McPherson

Retired, US Navy

Professor Juan Mendez

Professor of Human Rights Law, American University – Washington College of Law

Mr. Josh Meyer

Domestic Security Correspondent, USA TODAY

Mr. Alberto Mora

Associate Executive Director for Global Programs, American Bar Association; Director, ABA Rule of Law Initiative; Member, CERL Executive Board

Professor Jonathan Moreno

David and Lyn Silfen University Professor, Perelman School of Medicine at the University of Pennsylvania

Professor Christopher Morris

Professor of Philosophy, University of Maryland; Member, CERL Executive Board

Mr. Dan Norland

Teacher, La Jolla Country Day School; Editor of Witnesses of the Unseen: Seven Years in Guantanamo, by Lakhdar Boumediene and Mustafa Ait Idir

Ms. Natalie Orpett

Executive Editor, Lawfare; Deputy General Counsel of Lawfare Institute

Mr. Richard Painter

S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; CERL Advisory Council

Mr. Michel Paradis

Senior Attorney, Office of the Chief Defense Counsel

Ms. Claris Park

Second-Year Law Student, Georgetown University Law Center

Ms. Deanna Paul

Staff Writer, Wall Street Journal

Mr. Adam Pearlman

Founder and Managing Director, Lexpat Global Services

Professor Alka Pradhan

Human Rights Counsel, Guantanamo Bay Military Commissions

Mr. Nathaniel Raymond

Lecturer, Jackson Institute for Global Affairs

Dr. Steven Reisner

Psychological Ethics Advisor, Physicians for Human Rights

Mr. David Remes

Legal Director, Appeal for Justice

Professor Harvey Rishikof

Director of Policy and Cyber Security Research, National Security Institute; Visiting Professor of Law, Temple University Beasly School of Law

Mr. Scott Roehm

Washington Director, Center for Victims of Torture

Professor Gabor Rona

Professor of Practice, Cardozo Law School

Professor Kermit Roosevelt

Professor of Law, University of Pennsylvania Carey Law School

Professor Connie Rosati

Professor of Philosophy, The University of Texas Austin; Member, CERL Executive Board

Professor Harvey Rubin

Professor of Medicine, Microbiology, and Computer Science, University of Pennsylvania College of Arts & Sciences; Member, CERL Advisory Council

Ilya Rudyak

CERL-APPC Fellow, University of Pennsylvania

Mr. Michael Schwartz

Attorney, New South Law LLC

Professor Michael Skerker

Associate Professor, Leadership, Ethics, and Law, U.S. Naval Academy

Dr. Stephen Soldz

Professor, Boston Graduate School of Psychoanalysis

Ms. Isabelle Terranova

Second-Year Law Student, Georgetown University Law Center

Mr. Adam Thurschwell

Resource Counsel, Military Commissions Defense Organization

Col. Yevgeny Vindman

Colonel, U.S. Army JAG Corps

Gen. Joseph Votel

General (Ret.), U.S. Army; Member, CERL Executive Board

Stephen N. Xenakis, M.D.

Brigadier General (Ret.), U.S. Army; Member, CERL Executive Board

Mr. Jules Zacher

Attorney, Jules Zacher, P.C.; Member, CERL Executive Board

Background Readings

Detainee Tracker

Laws and Regulations 

Other Reports

Scholarship and Research 

U.S. Cases

Unclassified Documents

DoD Documents 

News Articles, Magazines, Blogs 

Required Readings

Conference registrants may access required readings. To gain access, please enter the password provided to you by the CERL conference team. If you have any trouble accessing the materials, please contact Jennifer Cohen (jenn.cohen@appc.upenn.edu). 

Contact us

For any questions regarding the conference or registration, please contact: Jennifer Cohen at jenn.cohen@appc.upenn.edu

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