Why Gitmo Still Matters
A conversation with attorney Thomas Wilner, counsel of record to Guantanamo detainees in two landmark Supreme Court cases, on the miscarriage of justice called “Gitmo.”
By Michael Judge
I first had the pleasure of working with Thomas Wilner in late 2008 when I edited an op-ed of his for The Wall Street Journal titled “We Don’t Need Guantanamo Bay.” Wilner—whom I respected greatly then and now—was counsel of record to Guantanamo detainees in two Supreme Court cases: Rasul v. Bush (2004), in which the court gave detainees in the U.S. naval base in Guantanamo Bay, Cuba, the right to habeas corpus; and Boumediene v. Bush (2008), in which the court held that the detainees’ right to habeas corpus is protected by the U.S. Constitution.
Sadly, it now looks as if KSM, the self-proclaimed architect of 9/11 and his four co-defendants, may never face a jury. Settlement talks are underway that would allow them to plead guilty, avoid the death penalty, and serve life in prison—either in Guantanamo Bay, Cuba, or after being transferred elsewhere.
What Wilner argues to this day is that justice could and should have been meted out swiftly in U.S. courts. In 2008 he wrote, “There has been a lot of media hand-wringing recently about all the difficult problems that must be solved in order to close Guantanamo. It’s not so complicated. First, closing the detention facility there does not mean that we cannot detain people. Guantanamo is only a place. But it is a place chosen by the Bush administration for a single purpose: to avoid the law. Because it is outside our borders, the administration argued that prisoners held there were beyond the jurisdiction of our courts and the protections of the Constitution. The Supreme Court has now rejected those arguments.”
Yet, a decade and a half later, subsequent administrations have not closed Gitmo. When the op-ed quoted above was published, Barack Obama had just won the presidency and pledged to end the Bush administration’s “extrajudicial” detention of prisoners in Guantanamo. Obama called Gitmo “a symbol around the world for an America that flouts the rule of law.” Yet he failed to close it after Congress passed legislation blocking funds for transferring Gitmo prisoners to the U.S.
His predecessor, George W. Bush, had released 533 prisoners by January 2009, leaving office with 240 still behind bars, including Khalid Sheikh Mohammad (KSM), the alleged 9/11 mastermind who has yet to face justice in a court of law. Obama, who released fewer than half the detainees Bush had and left office with 41 behind bars, was fiercely criticized for the few who returned to the battlefield against the U.S. Donald Trump said “We’re not closing Gitmo. We’re gonna fill it up!” and signed an executive order mandating that the facility remain open.
Trump didn’t “fill it up.” In fact, he released one Gitmo prisoner. But he did complicate things for his successor. President Joe Biden, like Obama, says he’d like to shutter Gitmo, and his administration has transferred out 10 prisoners since he took office, leaving just 30 behind bars of the 780 detained there since 2002.
But unlike Obama, who publicly clashed with lawmakers, Biden has chosen to work quietly with Congress, the Defense Department, and his National Security Council to gradually empty Gitmo. Rather than making it a campaign issue, as Obama did, he’s repeatedly said that it will “take an act of Congress” to close the facility, which has cost the U.S. taxpayers more than $6 billion since 2002 and the government its reputation for swift and thorough justice.
Sadly, it now looks as if KSM, the self-proclaimed architect of 9/11 and his four co-defendants, may never face a jury. Settlement talks are underway that would allow them to plead guilty, avoid the death penalty, and serve life in prison—either in Guantanamo Bay, Cuba, or after being transferred elsewhere.
What happens to the likes of KSM and the other 39 Gitmo detainees remains to be seen. But the central question remains: How long can justice be deferred? Not only for the nearly 3,000 victims of the 9/11 terrorist attacks, but for those who conspired to murder them on that awful September day?
Wilner and I discussed that and many other issues when I reached him recently at his home in Florida. Nearing the end of a long career as a brilliant litigator, he was as persuasive as ever that Gitmo remains “a cancerous boil” that must be removed in order to restore America’s standing in the world. Unlike other nations, the U.S. was founded on the principles of “justice, liberty, the rule of law, and equality,” he said, his voice cracking with emotion. “And if we sacrifice those, we’re nothing.”
MJ: Why don’t we jump right in. You’ve called the U.S. military prison in Guantanamo Bay, Cuba, a “cancerous boil on our nation’s skin that has got to be removed.” That’s pretty strong language. Why is it “cancerous”?
TW: It is basically contrary to the principles upon which this nation was founded. The whole concept of Guantanamo was to put people in a prison outside the law, where they had no access to the courts or to any rights to contest their detention. So the whole purpose was to avoid the law. And we know now that a large portion—probably many more than half of the 780 people detained there—were there by mistake. They were people in the wrong time at the wrong place thrown into this place outside the United States in a lawless prison, on the idea that you can hold foreigners outside the United States, even in a place that’s totally controlled by the United States, and they’d have no access to justice. That’s what it was. Depriving people of justice is just contrary to the United States’ principles. Guantanamo has been a symbol around the world and remains a symbol today, a recruiting tool for terrorists, and it makes us look like hypocrites.
You’re not a typical human-rights lawyer, if there is such a thing.
That’s right [laughter].
For decades you were a managing partner litigating for Shearman & Sterling’s International Trade and Government Relations Practice. How did you first get involved in the Gitmo detainee cases?
Well, I’m really not a human-rights lawyer. But basic justice is something I’ve always tried to work for. I got a call in March 2002 from families of Kuwaitis who were missing, who had been in Pakistan and Afghanistan, they said, for charitable work, and now were missing. And they wanted me to find them. They had gone to some famous lawyers like Warren Christopher and Lloyd Cutler, who had turned them down. This was soon after 9/11. And I said, “Yes. Sure, I’ll help you look for them or find out what’s happened to them.” And I went over to Kuwait to meet with the families. One of the leaders in one family had been a hero in the first Gulf War working with the United States, but the U.S. wouldn’t tell them anything.
While in Kuwait the U.S. Embassy told us that eight of the 12 missing Kuwaitis were in Guantanamo, and then the Red Cross told us the four others were there, too. At the time there had been leaflets distributed in Afghanistan and Pakistan saying, “Turn in an Arab terrorist and feed your family for life.” These poor people got between $5,000 and $25,000 for each Arab they turned in, and so if you were an Arab, you were a valuable commodity. And then I interviewed people about the backgrounds of these kids, learned about the charitable work they had done, etc. So we decided we needed to bring a case.
The lead plaintiff in our case was named Fawzi al Odah. His father, Khalid al Odah, had been a colonel in the Kuwaiti Air Force and had trained in the U.S. When we learned they were in Guantanamo, he said, “What can we do? Is he through?” And I was offended because I thought, “We can’t just treat people like meat. We’ve got to give them a fair shake and a fair chance of justice.” And when I took the case, al Odah looked at me—and he’s a big tough guy—and he started crying and he said, “Tom, my whole life I admired the United States so much, all its principles and what it’s done in the world. But I lost faith when they took my son. You’ve restored my faith.” And that drove me forward. And when I met these kids, I realized they were absolutely innocent. So that drove me forward.
There’s a great misunderstanding that Guantanamo is a place where we mainly hold terrorists, and that has never been so. Of the 780 people who have been incarcerated at Guantanamo since the beginning of this, only 16 of them have been accused of engaging in, planning, or assisting in terrorist acts.
So you were counsel of record to those 12 Kuwaiti detainees in Rasul v. Bush in 2004, and then counsel of record in Boumediene v. Bush in 2008. All 12 have since been released. Tell me about the recent Qassim v. Trump case?
First, let me be clear: All my Kuwaitis were released. They were released not because we won the Supreme Court cases, but because the government just decided to release them after years of detainment. They sent them back home. Qassim is a new client—I’ve had him for eight or nine years—and we got him originally to contest the ruling that they have no due-process rights. It’s interesting because you can’t win a hearing if you can’t contest the allegations against you. You don’t know the basis for them. The allegations against this guy, Qassim, were basically that he was a foot soldier 20-some years ago after 9/11 in the battle of Afghanistan. That’s something he denies vehemently, but he can’t see who’s making the allegation. So we wanted for him to have the right to do that.
In June 2019 we won a case before one panel of the D.C. Circuit saying that these guys should have the right to due process. Then another panel in another case held the other way, and it’s still sitting there. Now, the interesting thing about this: Remember the allegation against this guy is that he was a foot soldier in combat 20-some years ago. Well, in our legal system you can incarcerate people normally only if you charge them, try them, and convict them of a crime. We can’t be thrown in prison for any length of time unless we’re convicted of a crime.
There’s one exception in our law. In times of war, in times of combat, you can capture people who fight against you and detain them to keep them from rejoining the fight. Not as punishment, but to keep them temporarily from rejoining the fight. When that fight’s over, you need to let them go. We’ve done that in every war. So the allegation against Qassim is that he fought against us in battle. He denies that, he hasn’t had due process to contest it, but the fight’s over anyway. So now we’re saying—it is pending before the court now—that the legal basis for detaining him has ended. He’s just some poor guy there forever without legal authority.
But Biden pulled our forces out of Afghanistan. Isn’t the war over?
Yep. It’s over. But Guantanamo—as much as I hate to say it—shows the weakness of our democratic system. You’ve got guys there, 30, who are foreigners. They have no domestic constituency. I worked with the Obama administration to try to close Guantanamo. And I’ve worked with the Biden administration. But in the list of priorities before these political administrations, 30 foreigners at Guantanamo don’t rise very high. It’s hard, in a 50/50 Senate or 51/49 Senate, to spend one ounce of political muscle on them.
And that’s why it’s so important at the end of the day for the courts, who are really the safeguards of individual liberty, to act. But you’ve got the courts very divided now too, and they’re affected by politics. It’s easier to forget these people and let the cancerous boil exist and grow than to pierce it. Nobody’s got the guts. It’s just a shame. So that’s why I’m still laboring under what al Odah said to me—to restore faith in the U.S. We’ve got to keep fighting for it.
What is the ideal solution to the problems presented by Gitmo?
Let me break it down into two groups. There’s a great misunderstanding that Guantanamo is a place where we mainly hold terrorists, and that has never been so. Of the 780 people who have been incarcerated at Guantanamo since the beginning of this, only 16 of them have been accused of engaging in, planning, or assisting in terrorist acts. Now, there were about eight more who were originally accused, but those charges were dropped when the evidence was examined. So only 16 of the remaining detainees are accused of being terrorists. The rest of them are guys like Qassim, who are accused of being at most foot soldiers, but not terrorists.
There are, of course, some really bad dudes there. Khalid Sheikh Mohammed, KSM, is the planner of the 9/11 attacks. Other people there were involved in those attacks and in the planning of other attacks. So we should wake up and say, “These terrorists should be brought to U.S. soil, charged, and face justice.” That should still be done, and Republicans as well as Democrats should say, “Let’s bring these people to justice.” Putting them before these gerrymandered military commissions did not work. As Bush’s Solicitor General Ted Olson wrote in a WSJ op-ed in February, “I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained. We tried to pursue justice expeditiously in a new, untested legal system.” That’s right! But he backed those new rules. They were all mixed up. They didn’t know what they were doing. And worse, they elevated the stature of these people. They made them warriors rather than criminals. These guys are criminals. They should be brought before our courts, tried, and convicted.
But that’s only 10 of the 30 there now. The other 20 should be let go. The war is over. What are they going to do? Now, people say, “Well, they’re probably so angry at us, they’re going to go do hard things and strike back.” We should take that risk and try to make their life good wherever they go. Find homes for them quickly and do that. And Congress should say, “Yes, let’s stop preventing the administration from doing that. Let’s get them out of there and get them home. This has been a miscarriage of justice and we should not continue it.”
And that would take an act of Congress.
That would take an act of Congress and Ted Olson should start working on it. It’s in the United States’ interest.
Well, recently, they’ve repatriated a Moroccan detainee and some others, but some of them, one was sent to Belize, which is not their home, right?
Yes. It’s because you’re not allowed to take people to Yemen. You’re not allowed to send people to the United States, to Yemen, Syria, and a few other countries.
What progress is Biden making and why is it so hard?
Well, there are a number of reasons that it’s hard. Countries are facing a refugee crisis in a lot of places, so when you go to a country, the first thing they say is, “Hey, why should we take these detainees when the U.S. won’t even let them in their country? Why should we do that?” And then they need to enter into new agreements, which are sort of insulting agreements to take somebody, and then you still get crap from congressmen running around saying, “You’re letting terrorists out! Everyone in Guantanamo is bad!” To make matters worse, there hasn’t been a lot of press in the last 10 years cutting through all the false stories, so it is actually more difficult to close it now than it was 10 years ago.
It kind of reminds me of that short story, “The Ones Who Walk Away From Omelas.” You know that story?
I’m not sure I do, no.
It’s by an American writer, Ursula K. Le Guin. It’s torturous. It’s a story about this idyllic place where every summer they take the children to see these people that they keep locked up forever, and that the happiness of the society depends on the misery of these people being locked up.
Oh, I’ve got to read that. I’ve got to read that. Please send it to me.
I will. I think it came out in the early-1970s, and it’s absolutely heartbreaking, and poignant, and terrifying.
Well, it is interesting because I have 16-year-old twin granddaughters who have never been alive when the U.S. didn’t have an offshore prison outside the law holding people. And I hate to think that, like the story you mentioned, that becomes the norm here. We should be happy by being a country that promotes justice for everyone, not by knowingly keeping people who are innocent in prison because we’re fearing they may be angry at us. It’s just so un-American to me.
You’ve been working through the courts on this for two decades. But in 2012 you also co-founded, with journalist Andy Worthington, the website and lobbying campaign Close Guantanamo. How did that get started?
Well, when I first started on this all the way back in 2002, I really saw the courts as only one way to deal with this, and actually, I thought it would be the least effective way because I thought it would take so long to go through the courts and win. So I thought the best way was political action. I believed the United States had lost its way, but I had faith we would find it. So we worked to get the press to cover our cause and make a difference politically. We worked diplomatically too, and I thought all those things would be more effective than just the courts.
I first met Andy in England. He did a movie on Guantanamo, which was excellent, and he interviewed me. We became friends. And as time went on he formed Close Guantanamo. I help him, but he’s really the driving force behind it. As you know, back at the beginning, we were trying very hard to get press coverage. And we went to CBS, to “60 Minutes,” and we had one producer who wanted to do a show, and then they called me and said, “No. The network has said we can’t do it because it’s too political.” I said, “And here you’re supposed to be a courageous news organization—and it’s too political?” But then, eventually, we got op-eds published through you at The Wall Street Journal and The Washington Post and The New York Times and L.A. Times, and it became a hot topic.
And now, since the Obama administration, it’s been nearly impossible to get attention. I will say, I think Guantanamo is a great symbol of the impotence of the Obama administration. He could have gotten things through Congress when he was first there in the first two years. He could have closed the place. He backed down, and the opponents smelled blood and put in all of these other restrictions on transferring people that stopped it. But there was an opportunity there to act, and we have been feeling a lot of pressure since then. It was very interesting because the liberals didn’t want to criticize Obama for what he was doing, and it became buried. And the courts then, we won before the Supreme Court, but then got stuck in a court of appeals that was terribly reactionary and very pro-executive branch on these things. “Don’t question the executive in these times!” So, anyway, I’m wistful about it. No, I’m still angry. We’ve got to keep fighting.
I know that you’ve got twin granddaughters, who are 16 years old now. You were about my age, 56, when you started down this road. Now you're 78. What would you say to your granddaughters, if you had to say goodbye tomorrow, about why you’ve chosen to fight this fight and what it means to you?
Well, I still go back to why I did it originally. I tell the story: I’m a nice little Jewish kid whose grandfather came over from Russia in the 1880s. My grandfather’s father was a rabbi in a center of Jewish learning in Lithuania, in Vilna, or Vilnius. And he read about the Gettysburg Address, and he read it to his family, and he said, “If there’s such a country, that’s where I want my kids to grow up.” And so my grandfather and his brothers came to the United States; did well, studied well. But he would read in a little bit of an accent the Preamble of the Declaration of Independence and the Gettysburg Address to his kids, as my father did to us. And I still feel what makes us great is not because people are rich here, but because we’re the one country founded on principles and ideas—and those are justice, liberty, the rule of law, equality. And if we sacrifice those, we’re nothing. My father was one of four brothers; they all fought in World War II. Two of them were killed and they died for something. I’m certain of that. I am sounding wistful, but it’s what makes us great. It’s not Donald Trump or any other one person that makes us great. It’s those principles my uncles fought and died for—that’s what makes us great.
Why Gitmo Still Matters
I’m so thankful for your substack Michael, reporting the true nuance of our “news” experience, our “idea” experience, and complicating, recalibrating views on so many important human issues…Thomas Wilner is a true hero. His last lines slay and the shame that is Guantanamo one stepping stone in the erosion of our founding principles and American integrity. This work he’s undertaken is deserving of all the medals of honor. And may the innocent be returned to their loved ones albeit unfortunately traumatized by our hands and in plain sight.