The Fairy Tale America Likes to Tell Itself

The country believes that its policies are like a pendulum, swinging back and forth over a moderate middle ground. But since 9/11, that pendulum has been stuck.

Barbed wire at Guantánamo Bay
Paolo Pellegrin / Magnum Photos

About the author: Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization, where he represents Ammar al Baluchi, one of the five men facing the death penalty before the 9/11 military commission at Guantánamo Bay.

Many Americans like to tell themselves a story about the choices the country makes in times of national crisis. We see our country’s policies as a pendulum. We may overreact at first, temporarily sacrificing principles and rights to meet the emergency at hand. But eventually the crisis recedes, and in restoring our commitment to foundational principles and the rule of law, we push the pendulum back toward equilibrium.

This story is comforting; it makes sense of America’s reactions to crises throughout the country’s history. Indeed, I’ve repeatedly used this story to explain America’s post-9/11 policies even as I’ve played a small part in it. From 2013 to 2017, I was an adviser to the special envoy in the State Department’s Guantánamo-closure office. Since 2017, I have served as an attorney in the Department of Defense’s Military Commissions Defense Organization, on the team that represents Ammar al Baluchi—one of the men at Guantánamo facing the death penalty before the 9/11 military commission. But what I write here represents my own views, and not those of the Department of Defense. Unfortunately, the story I have told of post-9/11 overreaction and excess rectified by American institutions looks more and more like a fairy tale—albeit one that the Biden administration might yet redeem as truth.

Our pendulum swung in the aftermath of one of the most devastating terrorist acts in history, when then-President George W. Bush adopted a set of extraordinary policies inextricably linked with the detention facility at Guantánamo Bay, Cuba. Those post-9/11 policies constituted a significant departure from American law and values. Bush authorized the CIA to kidnap and detain individuals believed to be linked to al-Qaeda at secret dungeons around the world. At those locations—“black sites”—the United States imprisoned men incommunicado and practiced torture in violation of both a universal prohibition and America’s own vocal repudiation of the tactic. So-called enhanced interrogation included, among other abhorrent tactics, hooding, forced nudity, hallucination-inducing sleep deprivation, and concussion-inducing beatings, as well as war crimes that the United States had previously prosecuted, such as waterboarding. In some cases, U.S. personnel treated men such as my client as “training props,” tormenting them without even trying to gather intelligence. At least 26 of the 119 men who the United States has acknowledged were imprisoned as part of its so-called Rendition, Detention, and Interrogation program should not have been, according to the program’s own standards. One black site was even co-located with the offshore prison camp Bush established at Guantánamo Bay, where nearly 800 men have been detained—supposedly under the laws of war but largely without the protections that body of law provides.

Almost five years into the “Global War on Terror,” the pendulum appeared set to swing back to equilibrium when the Supreme Court handed down Hamdan v. Rumsfeld. That decision rejected the Bush administration’s extreme interpretation of the laws of war—which regulate the conduct of warfare, including the treatment of captured enemies, and endeavor to make it more humane—and promised a return to long-professed American principles and the rule of law. Yet, in the 15 years since, Congress, the executive branch, and federal courts have neutered that decision and arrested the pendulum’s course. Today, 40 aging and infirm men—many of whom were victims of American torture or cruel, inhuman, and degrading treatment—remain in U.S. custody at Guantánamo Bay in a detention regime that conforms little better to the laws of war now than it did in 2006.

From the outset, the United States has asserted that the laws of war authorize the imprisonment of men at Guantánamo for the duration of its war with al-Qaeda. The Bush administration implausibly concluded that the novelty of that war exempted it from applying law-of-war protections, particularly the Geneva Conventions, to the detention that it claimed the war justified. Contrary to the laws of war, the Bush administration transported detainees to a location far removed from its battlefield with al-Qaeda. It refused to treat those men as prisoners of war and failed to convene tribunals to determine their appropriate status under the law. It refused to apply Common Article 3, which would have barred the torture of America’s detainees, as well as their cruel or inhuman treatment. It tortured at least two detainees in military (as opposed to CIA) custody at Guantánamo. And it purported to establish military commissions—traditional American law-of-war tribunals—that not only lacked meaningful fair-trial guarantees but failed to adhere to necessary requirements of the Uniform Code of Military Justice. Notwithstanding these deviations from law and principle, the United States was untroubled by its unusual detention regime at Guantánamo because it reasoned that its activities there were beyond the reach of the Constitution and American courts. Indeed, a Bush-administration official described Guantánamo as the legal equivalent of outer space because of Cuba’s theoretical, residual sovereignty over the United States’ de facto perpetual leasehold there.

Then, on June 29, 2006, the Supreme Court decided Hamdan, leading many legal onlookers to think that the pendulum might finally be pushed back by the imposition of law and judicial oversight on what was happening in Guantánamo. In Hamdan, the second of three major Guantánamo cases decided from 2004 to 2008, the Supreme Court ruled that President Bush had overstepped his authority in ordering military tribunals for Guantánamo detainees that deviated radically from the Geneva Conventions and the UCMJ. Hamdan appeared to dictate that the detention regime at Guantánamo would thereafter conform to the laws of war. Torture and cruel, inhuman, and degrading treatment would be prohibited. Justice could be meted out only by regularly constituted tribunals that satisfied internationally recognized fair-trial guarantees. And, with the Court’s seminal Boumediene v. Bush decision in 2008, Guantánamo detainees were guaranteed the ability to seek judicial review in U.S. federal courts of both the legality and the conditions of their detention at Guantánamo, seemingly enshrining the law of war’s force there.

Unfortunately, in the 15 years following Hamdan, the promise of that decision—and that of Boumediene—has proved, like a fairy tale, too good to be true. Just two months after the Court handed down Hamdan, the United States transferred 14 victims of its torture program to Guantánamo. Although these men were now supposedly in military custody, the CIA retained operational control over them. Although they were now ostensibly law-of-war detainees, they continued to be deprived of meaningful access to their families. Although they were transferred to Guantánamo expressly to face (fair) trial by military commission—and although the Supreme Court had already guaranteed their access to legal representation—the United States continued to prevent them from meeting or speaking with attorneys for at least a year. And, although any fair trial necessarily precludes the use of torture-derived evidence, the United States continued to rely on the proceeds of torture by using FBI agents who had been intimately involved in the torture program to gather supposedly “clean” evidence for use at trial. In fact, the fruits of those torture-tainted interrogations remain the basis of U.S. prosecutions at Guantánamo that limp along to this day. One military judge has even authorized the prosecution to use, in pre-trial proceedings, statements extracted by torture at black sites, as if those statements were ordinary hearsay.

In the years since Boumediene, aggressive litigation positions advanced by the United States in Guantánamo habeas corpus proceedings, combined with a deferential federal appellate court, made judicial review of detention little more than a dead letter. The D.C. Circuit established a standard of wartime detention so expansive that it embraces not only men who fought the United States but some who never bore arms against the U.S. and even men whom al-Qaeda rejected. It is a standard so broad that the United States appears to believe it countenances the ongoing detention of a member of Hezb-e-Islami Gulbuddin, a group that capitulated to the U.S. five years ago and subsequently became an American ally.

During this same period, Congress wrote much of the law of war out of law-of-war detention at Guantánamo Bay. Through the 2006 Military Commissions Act and the 2009 Military Commissions Act, Congress barred the men detained at Guantánamo from relying on the Geneva Conventions to set the parameters of their detention. Congress also amended the War Crimes Act to insulate U.S. personnel from liability for violations of the laws of war, including outrages upon personal dignity and breaches of due-process protections.

For its part, despite repeatedly claiming that detention at Guantánamo is “informed by the principles of the laws of war,” the executive branch—across the Bush, Obama, and Trump administrations—emasculated the regulatory power of those laws by cherry-picking its authorities while discarding its obligations at Guantánamo. For example, the United States confused distinct legal categories and disparate legal regimes, asserting that its Guantánamo prisoners are detainable for the duration of its war with al-Qaeda, as if they were soldiers under the Third Geneva Convention, even as it established a detention review process that looks like the one applicable to civilians under the Fourth Geneva Convention. Yet, in doing so, the United States failed to adhere even to the partly U.S.-authored Copenhagen Principles by insisting that such review is discretionary and prohibiting it from reconsidering the underlying detainability of U.S. prisoners. Worse, the United States’ years-long, continued detention of men whom it no longer believes it must imprison is inconsistent with the foundational law-of-war principle of military necessity that approves detention as a battlefield expedient in the first place.

Similarly, the executive branch refuses to apply fundamental, humanitarian law-of-war principles at Guantánamo. As recently as January 11 of this year, in an effort to evade a federal court order, the executive branch claimed to retroactively exempt Guantánamo alone from U.S. detention regulations that would otherwise require a mixed medical commission to determine whether a victim of American torture is so ill that he must be released. Exacerbating that failing, the United States likewise refuses to provide its Guantánamo detainees with access to health care equal to the care available to the men and women who guard them, embracing a perverse justification for this deprivation: Guantánamo, it says, is more like the remote battlefields on the other side of the world than a peaceful base fewer than 500 miles off the coast of Florida. That policy has likely already resulted in the permanent debilitation of at least one prisoner.

Nevertheless, on this anniversary of Hamdan, a new administration imbued with the lessons of the Obama years provides reason—if ever so slight—to hope that America will resurrect its values and restore our pendulum’s equilibrium. Although much of the damage wrought by the United States’ post-9/11 excesses cannot be undone—those tortured cannot be untortured; those debilitated cannot be healed—it can be mitigated in a way that helps restore America’s global leadership. That mitigation requires the United States to take four steps that would, in President Joe Biden’s words, restore America’s commitment to “upholding universal rights, respecting the rule of law, and treating every person with dignity.” Together, these steps would save our story from its fate as a fairy tale.

First, the Biden administration must finally close the detention facility at Guantánamo Bay in order to end its aberrant experiment there. President Biden and senior members of his administration have already committed to doing just that. The president should appoint a senior administration official to quickly and responsibly repatriate or resettle the 28 Guantánamo detainees who are neither being prosecuted before nor awaiting sentencing by military commissions. In transferring those detainees, the Biden administration should acknowledge the victims of American torture and ensure that, upon their release from U.S. custody, those victims receive at least appropriate medical care for their complex injuries.

Second, the Biden administration should demonstrate its commitment to the rule of law by immediately entering into plea negotiations to resolve the cases of the 10 men with pending Guantánamo military-commission trials. Such negotiations almost certainly mean that the United States will not, ultimately, execute the alleged perpetrators of the 9/11 and other terrorist acts. But that is both appropriate and proportionate. Neither the United States nor any other government should be allowed to execute victims of its own torture—and it certainly should not be allowed to do so on the basis of evidence derived from that torture. Disallowing the death penalty for victims of torture will meaningfully deter future U.S. leaders who are enticed by a crisis to discard American law and values to address that crisis. Plea agreements also offer the quickest path to achieving a modicum of justice for the United States, the American people, and the victims of terrorism by finally assigning individual responsibility for terror, an outcome long denied by the interminable, broken military commissions.

Third, the Biden administration should declassify the full Senate Select Committee on Intelligence’s report on rendition and interrogation. It should also make the complete, unredacted version of that report available to the attorneys who possess requisite security clearances and represent Guantánamo detainees on trial before military commissions. Those attorneys require access to the full report in order to adequately serve their clients, and access to it will ensure that those clients receive sentences that correctly reflect both the scale of their crimes and the wanton, illegal brutality they suffered. Anything less would serve only to extend the United States’ decades-long denial of a fair trial for alleged criminals who are also victims of American torture.

Finally, to restore America’s historical, global law-of-war leadership, the Biden administration should convene an international conference that aims to articulate the laws of war applicable to non-international armed conflicts. This conference would fill the gaps in regulation of armed conflicts such as the U.S. war with al-Qaeda. It would demonstrate America’s recommitment to the rule of law by establishing a legal framework that clearly defines the rights, duties, and obligations of participants in those conflicts. In so doing, it would restrain parties to future such conflicts, limiting their ability to engage in the law avoidance that marked much of America’s post-9/11 excess.

If taken, these steps would help mitigate, and meaningfully impede the recurrence of, the harms inflicted since the 9/11 attacks. These steps would also restore our standing in the international community as a country committed to universal values and the rule of law. And they would, at long last, vindicate our pendular story.