Unexpected news emerged at the end of July that a plea bargain had been reached with three of the 9/11 accused. That newsflash barely had time to sink in, and few substantive details had emerged on the agreement itself, when with whiplash speed, Defense Secretary Lloyd Austin decided to unilaterally discard the plea deal and pursue trials for the three men at Guantanamo. His decision, partially (and controversially) taking back decision-making power from the Military Commission’s convening authority seemed mostly focused on keeping the death penalty as punishment on the table.
Following years of negotiations, in February 2023, in my capacity as Special Rapporteur on the promotion and protection of human rights while countering terrorism, I carried out the first official UN visit to the Guantanamo detention facility and offered clear recommendations to the U.S. government, including on fair trial guarantees, the treatment of detainees, and victims’ rights.
Here, I reflect on the opportunity lost for the United States to conclude meaningful and rule of law compliant plea agreements, finally redeeming the rights of 9/11 families as a whole and achieving some closure by bringing these cases to an end with an admission of guilt on the part of the defendants, while offering the potential to write a new chapter of international law compliance following decades of torture, cruel, inhuman and degrading treatment at the site and beyond. Instead, decision ping pong highlights the fundamental arbitrariness of all processes pertaining to Guantanamo including the commissions – an arbitrariness that brings unrelenting anguish to many victims, pervades the ongoing detention of the aging and increasingly infirm defendants and remaining detainees, and contravenes the international human rights law obligations of United States.
Victims Deserve Acknowledgement of Reality: Only Pleas will End these Cases
As my report to the General Assembly in October 2023 confirmed:
… the most significant impediment to the fulfilment of the victims’ rights to justice and accountability was the use of torture. Torture was a betrayal of the rights of victims.
Victims of serious violations of international law undeniably have fundamental rights, including truth, justice, reparation and guarantees of non-repetition. But the redemption of those rights in the aftermaths of decades of torture, ill-treatment, and arbitrary detention at Guantanamo is fundamentally compromised due to the absolute prohibition under international law of the admission of torture-derived evidence at any stage of legal proceedings, including pre- and post-trial. The U.S. government’s long-standing inability to bring these cases to trial and Secretary Austin’s botched response to that obvious reality, underscoring his unwillingness to unflinchingly face the cost of torture, will have the most negative of consequences for victims, denying them what little capacity remains for truth and justice.
Secretary Austin failed to give honest acknowledgement to the 9/11 families of what is now realistically legally possible – not trial but plea agreements. These plea bargains enable some meaningful justice for victims not least because they offer meaningful process, courtroom confrontation, and testimony and are the only available route to conclude a legal process that has no clear end in sight.
While there may be short-term relief for some families who were profoundly uncomfortable with the implementation of a plea agreement, abandoning the executed plea bargains and pushing for unfair trials under international law will simply continue a regime of confinement that brings shame to the United States. Undulating legally compromised litigation makes the United States rightly vulnerable to clear-eyed international condemnation, and fundamentally fails to honour the obligations to victims in the aftermath of the 9/11 terrorist attacks. A failure to live up to the responsibilities that follow from historic and ongoing torture and/or cruel, inhuman and degrading treatment at the detention facility is not an answer to the rights of victims of terrorism. As I set out in my End of Mission Statement:
… the severe mental and physical pain and suffering and the cumulative, compounding effects of these identified practices and omissions for the dignity and fundamental rights and freedoms of this detainee population, are reasonably foreseeable … the totality of these factors, without doubt, amounts to ongoing cruel, inhuman, and degrading treatment at the Guantánamo Bay detention facility, and may also meet the legal threshold for torture.
Subsequently in my Annual Report to the General Assembly, I underscored that:
Notwithstanding significant improvements to the material conditions of confinement, the Special Rapporteur expressed serious concerns about the continued detention of (then) 34 men and the systematic arbitrariness that pervaded their day-to-day life, bringing severe insecurity, suffering and anxiety to all, without exception. She concluded that the totality of practices and omissions had cumulative and compounding effects on the dignity and fundamental rights of detainees and amounted to cruel, inhuman and degrading treatment under international law.
These findings were true last year, and they are now further compounded by the ongoing and in some respects increased arbitrariness of the detention regime, added to the compounded unpredictability of botched decision-making on plea bargains. The psychological consequences of agreeing to a plea agreement with all its consequences followed by its rapid dismissal adds to the finding of cruel, inhuman and degrading treatment for these detainees as a matter of international law.
And to state the blindingly obvious, to agree to a guilty plea eviscerates the possibility of subsequent fair trial, a cornerstone of the International Covenant on Civil and Political Rights to which the United States is a Party.
The bottom line is that Secretary Austin must reinstate these agreements as a matter of urgency not least to ensure that U.S. action in respect of Guantanamo moves closer to international law compliance.
International Law Compliant Plea Agreements
While these plea agreements are not public, it bears reminding that any agreement which is not international human rights law compliant does not solve the compliance gap and accountability deficits of the United States in respect of due process and fair trial at Guantanamo. There is no rocket science involved here. The international human rights benchmarks of any plea agreement include the following:
- Meaningful consent: The defendants must meaningfully consent to a plea agreement, without coercion or fear.
- Torture rehabilitation for survivors: For torture victim survivors entering a plea agreement, no matter the crime, the state remains under an unremitting obligation to address the harm of torture through adequate, available and acceptable health provision. At Guantanamo this means independent medical care, and revamped medical and detention facilities for the detainees. There can be no internationally compliant plea agreements for torture victim survivors who remain in the long-custody of the state which tortured them without torture rehabilitation.
- Overhaul conditions of confinement: If these men are to remain at Guantanamo to serve out their sentences, the conditions of confinement at Guantanamo require significant overhaul as set out in my Report to the General Assembly, and End of Mission Statement, to prevent unrelenting violations of the jus cogens prohibition on torture, cruel, inhuman and degrading treatment. Guantanamo was and remains defined by arbitrariness in all aspects of its operation, from a lack of transparent SOPs, deficits in human rights training for the Guard Force, profound violations of the right to health, inadequacies in the independence of medical care including lack of access to medical records, profound failures to maintain the right to family life, hampered capacity for lawyers to serve their clients comprehensively and consistently, deficiencies in procedural mechanisms such as the Periodic Review Board, and profound limitations on the right to fair trial.
The sum of these parts means that to ensure that the execution of a plea bargain ends ongoing human rights violations the U.S. government has sizeable work ahead.
The first place to start is to undo the harm of Secretary Austin’s artless withdrawal of the plea agreement. While the Courts may do this work for the political branch, it bears reminding that the exceptionality of Guantanamo continues apace. The United States continues to score ‘own goals’ through its mismanagement of the detention facility.
President Biden and his administration showed courage and conviction to allow a UN visit to the site, but the execution of their promise of international law compliance lies not just in letting someone in. Rather, as an advanced democracy who says its cares about human rights and is defined by them, the U.S. must then implement the recommendations for victims of terrorism and for the victims of torture contained in my report. Rescinding this plea deal has made that task harder and longer, but it can still be remedied, and a course correction is still possible to help redeem this dark and stained chapter of U.S. history.