Four questions that deserve answers at the Guantanamo oversight hearing

The Biden administration’s halfhearted approach to closing the Guantanamo prison isn’t sitting well with Sen. Dick Durbin (D-Ill.) In April, he wrote to President Biden urging the administration to act swiftly toward that end. In July, he wrote to Attorney General Merrick Garland pressing him to reconsider government litigation positions that frustrate rather than facilitate closure and that undermine fundamental rights.

On Wednesday morning, he railed against Guantanamo and post-9/11 U.S. torture on the Senate floor and announced that the Senate Judiciary Committee — which Durbin chairs — will hold an oversight hearing on Guantanamo next week.

Here are four questions to which the committee should demand answers at the hearing:

1. Is the administration considering plea agreements to resolve the Military Commission prosecutions? Closing Guantanamo boils down to two steps: transferring men who haven’t been charged with a crime and resolving Military Commission cases. The administration has done the bare minimum on the former — a single transfer in July. With one notable exception, it’s made zero progress on the latter. The commissions are a spectacular failure. Most of their eight convictions have been overturned in some way on appeal. They’ve floundered in embarrassing fashion and trampled on human rights. The case against those alleged to be most responsible for the Sept. 11, 2001 attacks is mired in never-ending preliminary proceedings. Commission trials are a mirage towards which continuing to barrel ahead is no strategy at all. The only realistic way to resolve the cases — and possibly pull a modicum of justice off the scrap heap they’ve become — is through plea agreements. The Justice Department should be championing that solution. It would mean formally abandoning the death penalty, but in practice, torture took capital punishment off the table long ago. For victims’ families, the government could negotiate a process to provide them the information they’ve long sought from the defendants, but that commission prosecutions haven’t produced. Plea agreements offer finality and closure for all involved. They’re also the only viable route into federal court, where these cases should’ve been brought in the first place. That is because while current law prohibits transferring Guantanamo detainees to the U.S., federal court pleas can be taken remotely, via videoconference, from Guantanamo. 
2. Why are DOJ litigators fighting to hold men that senior DOJ officials have already agreed should be released? The administration decides whether a detainee should be transferred out of Guantanamo through the Periodic Review Board (“PRB”) process. The PRB is composed of senior officials from every national security agency, including DOJ, and operates by consensus. Agency principals make the final call. The PRB — again, including DOJ — decided that both Haroon Gul and Abdulsalam Ali Abdulrahman Al Hela should leave Guantanamo. Justice Department litigators are still fighting in court to keep them both there nonetheless. 
3. Why are government lawyers defending the use of torture-derived evidence, and resisting the application of fundamental human rights at Guantanamo? Here’s how Durbin closed his July letter to Garland, to no avail: “It is well past time for the department to reconsider its approach to the applicability of the basic safeguards of due process to [Guantanamo detainees], as well as other positions that help perpetuate this moral stain on our nation.” Government litigators have since refused to acknowledge that due process applies at Guantanamo, or to disclaim authority to use torture-derived evidence against the men the government tortured. Both positions flatly contradict Biden’s commitments to human rights, human dignity and the prohibition of torture.
4. Will the Justice Department open a criminal investigation into Majid Khan’s torture? Majid Khan — who pled guilty and has been cooperating with the government for years — recently became the first CIA torture program survivor to tell the world his story. For two hours, he illustrated his torture, both verbally and physically, with stomach-wrenching specificity. A jury of senior military officers summoned to sentence him was so moved that it penned an extraordinary letter urging that he receive clemency. Khan disclosed previously unknown details about his torture far beyond the abuses Bush administration lawyers authorized, including being raped repeatedly with a garden hose. He also revealed that the CIA videotaped at least one of his interrogations, a fact it appears the CIA never told Senate Intelligence Committee investigators. In 2012, after a limited criminal investigation, Assistant U.S. Attorney John Durham concluded there wasn’t enough admissible evidence to charge anyone in connection with CIA torture. Did his investigation include Khan’s case? If so, and classification was the obstacle, based on what the government allowed Khan to say, that shouldn’t be an obstacle now.

Scott Roehm is the Washington director of the Center for Victims of Torture (CVT). Before joining CVT, he was vice president of Programs and Policy at The Constitution Project, where he oversaw the organization’s national security and criminal justice portfolios.

Editor’s Note: This piece was updated on Dec. 3 at 11:04 a.m.