Early last week, even as the United States military was scrambling to
move resources ahead of Hurricane Irma, it was loading a surgical team
onto a Navy C-40 jet, headed to the base at Guantánamo Bay to operate on
a prisoner. The team, Carol
Rosenberg,
of the Miami Herald, reported, included “a neurosurgeon, a
neuroradiologist, an operating room nurse and a pair of neurosurgical
technicians,” with a couple of pallets of medical equipment in tow.
Their patient, Abd al Hadi al Iraqi, who also goes by the name of
Nashwan al Tamir, is an alleged Al Qaeda commander who is fifty-six
years old and has been held at Guantánamo for ten years; according to
the doctors his lawyers had consulted, his chronic spinal problems had
flared up in a way that, if not treated, could leave him partly
paralyzed. The base’s medical facilities are not equipped for such a
procedure. Given that the commander was in the midst of battening down
the facilities, it might have made practical sense to simply medevac
Hadi to a military or prison hospital somewhere else. But that would
have been against the law: in 2010, Congress passed legislation that
made it practically impossible to bring any Guantánamo prisoner to the
United States, even temporarily, even at the President’s order. And so
the doctors and nurses and technicians got on a plane, and flew toward
Irma.

In some ways, Hadi is an unusual prisoner. Of the forty-one people still
held at Guantánamo—down from two hundred and
forty-two when President Barack Obama was inaugurated—he is one of only seven who
face charges before a “military commission.” The others are Khalid
Sheikh Mohammed, the admitted master planner of the September 11, 2001,
attacks on the World Trade Center and the Pentagon; four of his
co-conspirators; and Abd al Rahim al Nashiri, who is accused in the 2000
attack on the U.S.S. Cole, in waters near Yemen. Mohammed was captured
in 2003—almost fifteen years ago—but his trial has yet to begin. In a
series of hearings in recent weeks, the prosecution submitted a proposal
to finally get things rolling in January of 2019. The defense and the
military judge both indicated that even that date would be wildly
ambitious. Last month, when President Trump announced his Afghanistan
policy with the news that the United States would send another round of
troops to fight there, he and others remarked on the widespread
frustration about the length of the war. The Twin Towers fell sixteen
years ago today, meaning that young Americans who were not even born
then could soon be fighting in the Afghan war. The same could be said
about the guards at Guantánamo. But a measure of the futility of the legal response
to the attacks is that there will soon enough be young military officers, at least
eligible to serve as the equivalent of jurors on the military
commission, who were also born after 9/11.

In part, the delays are due to some of the same practical factors that
led the military to fly a surgical team to Guantánamo when it had plenty
else to worry about in the Caribbean: figuring out where to house the
lawyers and other personnel, for example. And there is only one
courtroom at what is known as the base’s Camp Justice that is equipped
for proceedings using top-secret classified evidence, which is what both
the 9/11 proceedings and the U.S.S. Cole trial, which a second judge,
Colonel Vance Spath, is presiding over, would be. (Both are also
death-penalty cases, which introduces another layer of complexity and,
rightly, lawyering.) That courtroom was initially double-booked for
several pre-trial hearings, with both cases pencilled in for the same
dates in 2018. The idea was that this might be managed with a second
shift. The Herald’s Rosenberg—who, often enough, is the only reporter
at these proceedings, doing the work, on her own, that might be shared
by dozens of journalists in a civilian courtroom—wrote that, when Judge
Pohl learned of that plan, he didn’t react
well.
“This case will not be night court, O.K.?” Pohl said.

Rosenberg noted that it might not have to come to that. Given how often
the military cancels hearings, the dates had an imaginary quality to
begin with: you schedule two on a day and end up with neither happening.
But Pohl was raising an important point about something else that the
proceedings have lacked, namely dignity. There were supposed to be
hearings for both the 9/11 and the Cole cases in July, but Pohl and
Spath put them on hold because, for one reason or the other, the Navy
didn’t want to provide a fast boat to take the judges and their staffs from the
airstrip to the courthouse, saying that they should just get a ride with
victims’ families and the prosecution and defense lawyers. The judges
objected, saying that this threatened their independence and violated
their rules against “co-mingling.” The resolution involved the transfer
of three hundred dollars from the Pentagon to the Navy; it took about a
month to work out that deal. For perspective, it costs about four
hundred and forty million dollars a year to maintain Guantánamo prison,
or more than ten million dollars per inmate.

But, as absurd as the boat dispute might sound, it illustrates not only
the logistical complexities of holding what should be the trial of the
century on an isolated offshore base but the fact that, even now, the legal
procedures are largely improvised. The military commissions are neither
traditional courts martial nor civilian courts but a system slapped
together after 9/11, partly in reaction to Supreme Court rulings in
favor of Guantánamo prisoners being denied basic rights. As William
Finnegan laid out in a recent profile of Zainab
Ahmad,
an Assistant U.S. Attorney in the Eastern District of New York,
America’s civilian courts actually have quite a good record prosecuting
terrorists so far, with six hundred convictions just since 9/11. (Ahmad
has won thirteen of those herself.) The military commissions have only
produced eight convictions, most as the result of plea deals in
connection with transfers to other countries, and four of those have
been overturned, in whole or in part. (Three convicted prisoners remain
at Guantánamo: two awaiting a sentence, and one serving one.) Civilian
courts also have time-tested procedures for dealing with classified
material. In contrast, the latest round of military-commission hearings
came to a halt at one point when everyone realized that, although the
prosecution and defense lawyers had been given clearance to see a
certain document, Judge Pohl had not. While that was being sorted out,
there was a rush to hide the evidence from the judge who was expected to
rule on it.

Khalid Sheikh Mohamed and Nashiri are Guantánamo’s marquee names. Five
other prisoners, though, have been cleared for release, a long process
that includes multiple agencies determining that they pose no threat.
These are people who probably never should have been sent to Guantánamo
in the first place; in some cases, they were ordered released many years
ago but are still being held. (One problem is figuring out where to send
them.) There are also twenty-six people who are known as “forever
prisoners,” meaning that the Obama Administration was too uncertain
about their innocence to release them but too timid to file charges
against them—whether this was out of fear of an acquittal or because
something embarrassing to the government might have emerged, it is
impossible to say without a trial. President Obama enshrined this
hesitation in a process of “periodic reviews.” The status of these
prisoners remains what it is: indefinite detention on no charge, a
distinctly un-American condition. The day before Obama left office, he
sent a letter to
Congress complaining that “politics” had kept him from closing the base. That is
true, to an extent: even though George W. Bush had transferred twice as
many prisoners as Obama ever did, once Obama took office, the
Republicans used the prison issue as a cudgel. When the Obama
Administration put together a comprehensive analysis demonstrating,
among other things, that supermax prisons did a good job of holding even
the worst terrorists, Senator James
Inhofe,
the Republican of Oklahoma, said that the report was “simply giving
cover to President Obama so that he can continue what he is already
actively working towards, which is bringing terrorists onto U.S. soil.”
But politics is not something that just descends on a President, like a
hurricane. Even before Congress made it much harder, the Obama
Administration had muddled its
chances to close Guantánamo. In 2009, Attorney General Eric Holder said that he
would bring Mohammed to New York, to stand trial in federal court. This
was the key moment; we might have had a trial years ago if the
Administration had stuck to that decision. But, in the face of
opposition from Republicans and local politicians, the Administration
backed down.

What this means, in short, is that although Obama scaled Guantánamo
down, and brought it a great distance from the days when prisoners were
abused there, his successor, Donald Trump, could easily scale it up
again. He has said that he wants to keep it open: during the campaign,
he said, “We’re gonna load it up with some bad dudes, believe me, we’re
gonna load it up.” That hasn’t happened yet, but, last week, Secretary
of State Rex Tillerson announced that the job of the State Department
official assigned to work on closing Guantánamo would be eliminated. The
retired general John Kelly, Trump’s chief of staff, oversaw Guantánamo
when he led the military’s Southern Command, and has dismissed
criticisms of the site as media exaggerations. Soon after the
three-hundred-dollar boat-ride dispute, the Pentagon awarded a
forty-three-million-dollar contract for a new fibre-optic system for the
base. There are
plans for a half billion dollars in construction projects, including a new
hospital.

Meanwhile, the base made it through Irma relatively well, with downed
power lines but few signs of damage, an officer told Rosenberg. There were, she
reported, a few wet spots in the courtroom ceiling, which would need new
tiles. The next time hurricane winds shift to Guantánamo, it might be
better prepared. And the 9/11 trial, with its maddening mix of tragedy
and absurdity, and its too-delayed promise of justice, might even be
under way.