Choking on the mess

Promises were made that trauma would be unleashed with the arrival of the new administration on January 20, 2025, and Trump appointees are keeping to that plan. Right now, U.S. officials charged with carrying out the laws seem to be breaking a lot of them, all at once and across the board. In response, judges are condemning these actions, expressing concerns about the government running roughshod over national security issues and long-established rights of citizenship, among many other things.

Accountability is critical. When the law is broken without accountability, crimes get absorbed into the system and become part of the ongoing everyday operations. I want to look at why paying attention in those situations—when it might seem utterly ineffectual—still matters. Because of the aggressive showcasing of immigrant deportations to Guantanamo in recent days, I want to consider some events that happened while I was visiting the base.

When I wrote my global history of concentration camps, I opened and closed it with Gitmo. Not because it was the biggest or best example of mass detention without trial in the history of camps, but because even a decade ago, it seemed to be a time bomb that needed to be dismantled, because its suspended state held the possibility of much worse events happening there.

We are now moving forward on that path in which worse things could happen, both there and in the U.S. itself. I want to consider what’s taking place under Trump today. And I’ll explore how people are already fighting back. 

Torture family reunion

The 9/11 five—the men charged with aiding the hijackings that brought down the World Trade Center and hit the Pentagon—have never gone to trial. Joint charges were brought in the first case in 2008. A plea deal in that case fell through, with a second set of charges filed jointly in 2012. We’re are now well into the second decade of the latter case.

The case was just three years old when I got on a military plane at Joint Base Andrews in Maryland, on my way to cover the February 2015 pretrial hearings in the Expeditionary Legal Complex at Guantanamo Bay.

After signing a thirteen-page agreement about what I was not allowed to photograph and acknowledging restrictions on access—including allowing the military censor any pictures I took that they wanted to delete—I moved into a tent with Carol Rosenberg. Carol had witnessed the arrival of the first war-on-terror detainees in January 2002 and has been reporting on events there ever since.

That Monday, the first hearing opened with the judge checking off the detainees who were present and confirming who was representing them. (The hearings have gone on so long that attorneys on various teams have changed more than once.) When asked if there were any other matters to address before beginning, one of the defendants—Ramzi bin al Shibh—made it known that he recognized one of the translators working in the court that day. He said the man’s name and claimed to recognize the interpreter from a C.I.A. black site where he, Ramzi bin al Shibh, had held before being sent to Guantanamo.

Other defendants soon chimed in, with attorneys for three others saying they also recognized the man. Within minutes, the judge ended the session. Even without the debacle of the interpreter, any mention of torture tended to have this effect, because the government was asserting classified status over what had happened to those detainees in captivity, asserting ownership over their ability to express their own memories.

It took a few hours to determine what had just happened. Those of us there with press passes to cover the hearings, the family members of those killed on 9/11, and representatives from nonprofit organizations there as observers tried to parse what we’d just seen. Had it been planned in advance somehow? Was it a planned spectacle, to try to derail the hearings? Or was it possible that the Pentagon had actually sent someone involved in “enhanced interrogations“—torture, in the words of then-President Obama—into the courtroom to be face-to-face with the accused?

Aftermath to a debacle

Creation of court transcripts had become systematized by then, with a record of each day’s session sent out via email. The hearing that Monday had been so short that the transcript was sent out to the press not long after the session ended. Almost immediately after it was sent, it was rescinded and information in it deemed classified.

Those of us with the press asked to meet with the prosecution, to ask for clarification of what had happened. Was it possible that what Bin al Shibh said was true? Had he been in the courtroom with someone who had been present at a C.I.A. site, or even during a torture session? In the publicly available records, Bin al Shibh seemed the most troubled, with sleep disruptions, delusions, and accusations of constant surveillance that pointed to an unsteady mental state, a condition his attorneys attributed to torture itself—torture inflicted on him by the U.S. government. Was he imagining things?

That afternoon, a Pentagon representative acknowledged that Bin al Shibh might have encountered the person he pointed out before, because the person in question had previously worked for the CIA overseas. It was possible that other defendants had encountered him too.

Hearings resumed later that week, where the attorneys for the defendants were reminded by the judge that the fact that the interpreter had worked for the C.I.A. was not classified, but that his name, his physical attributes, his appearance, and the issue of whether the man had ever visited Guantanamo—had ever been in the courtroom we had all seen him in not long before—those were all classified.

Discussing what had happened in court while not mentioning the translator’s presence earlier that week or bringing up yet again the allegations of torture that had derailed so many prior hearings proved impossible. The planned two weeks of hearings concluded after a few days and less than eight hours of actual court time. The arguments over how to handle the incident and its ramifications went on for years.

We flew out of the tiny airport at Gitmo that Saturday, all of us crowding into the waiting area—prosecutors, defense attorneys, contractors doing other work on the base, the 9/11 families, and the press. It was the only flight out of the base for days.

As we waited to board, over the loudspeaker came the call for those who had not yet checked in. They announced the name of the translator, which had officially become classified information. The most mundane systems of accountability—checking in for an airplane flight—had once more undermined what was still officially, in the eyes of the law on Guantanamo, a secret.

 Gitmo origin story

Now, in 2025, Donald Trump has begun sending immigrants from the U.S. to Guantanamo for indefinite detention. Since most people don’t know the history of detention on the island, here’s a quick summary. In late 1991 after a military coup in Haiti, tens of thousands of refugees fled for their lives in rickety boats, trying to make it to Florida, where they had the right to apply for asylum if they could get ashore.

President George Herbert Walker Bush’s administration didn’t like the optics of heading into an election year with tens of thousands of Haitians arriving on U.S. shores wanting to stay. And there’s no doubt it would have been an administrative challenge to process them there. But the government’s answer to the problem was to cut them off at sea before they could get to Florida and detain them for processing at Guantanamo. Some 34,000 were captured at sea this way (some accounts suggest it was even more).

Conditions were miserable. Years later, there was another Haitian influx and a Cuban one, too. The refugees were not subjected to the kind of military-prison style of detention that would make Gitmo famous later, but it was a kind of miserable purgatory at best, one that included riots. And for a group of HIV-positive detainees, who were segregated from the rest of the population and not given real access to medical care or legal counsel, it was a nightmare.

When plaintiffs’ attorneys tried to file cases on behalf of some of the detainees, one judge declared that U.S. courts didn’t have jurisdiction, that the base at Guantanamo Bay was not on U.S. soil. But in a separate case, another judge prepared to hear arguments about those HIV-positive detainees who had been segregated, indicating a belief that the court did have jurisdiction. That judge, Sterling Johnson, called the detention “nothing more than an HIV prison camp” and demanded that the prisoners be freed but not sent back to Haiti.

In 1992 Bill Clinton had campaigned on undoing the Gitmo detention, but once in office, he had more to lose politically by sticking to that earlier principle. His administration settled the case, agreeing to the release the HIV-positive detainees in order to make the adverse ruling go away. This effectively left Guantanamo in a gray area, but with that prior court decision tilting away from requiring constitutional actions and protections for people held there. 

Twin Towers’ aftermath

Fast forward seven years, months into the first administration of George W. Bush, when 9/11 happened. Administrators wanted to capture and quickly punish those responsible for the mayhem and the death of thousands of U.S. residents and citizens. With its gray-zone lack of constitutional protections for those immigrants a decade before, Gitmo was seen as the ideal place for war-on-terror detainees.

Some 780 people are known to have been held at the base in all under war-on-terror authorization, with many of them arriving due to simple overload in Afghan detention facilities after the US invasion to overthrow the Taliban. These detainees were never clearly determined to be enemy combatants on an individual basis. Some of those who would eventually be held at Gitmo didn’t arrive there until years later. Many who did arrive later came after stints being tortured in black sites around the world, through tactics approved by the White House as “enhanced interrogation” during the Bush administration. These tactics were later described by President Obama and many others as torture.

Hundreds would be released without any charges in the seven years under George W. Bush’s administration. More than a hundred fifty more would leave the island without being charged during two terms under Obama. Releases stopped almost completely under Trump, and Biden pushed a few more through, leaving just 15 detainees in place by the time Trump took office again.

The court steps in

During those twenty three years of war-on-terror detentions (so far), the Supreme Court at first declined to interfere with the president’s authority to make speedy and difficult decisions about national security. Then it began to acknowledge rights for detainees held there.

In a landmark case in 2004, the Hamdi case, the judges on the court declared habeas corpus rights against indefinite detention for a Gitmo detainee who was a U.S. citizen. Another case, Rasul, expanded that protection to non-citizens and foreigners held at Guantanamo. Justice Kennedy remarked about Rasul that “Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.”

But in recent years, as Trump appointed candidates supported by the far right to lower courts as well as the Supreme Court, rulings have shifted. Judges have been less willing to rely on these cases as meaningful precedents for addressing what has turned into indefinite detention on Guantanamo.

As far as legislative action, under George W. Bush, Congress shored up Guantanamo detention by backing the president. But even before Bush left office, the U.S. Senate had begun investigating some decisions from this era. During Obama’s years in office, a Senate committee conducted a full investigation of torture after 9/11. The facts that emerged were scandalous. Two psychologists were paid $81 million to develop the torture program. Some detainees were waterboarded dozens of times, one as many as 183 times across 15 sessions. The revelations went on and on, with official lies, clandestine operations, and human rights abuses.

An “Executive Summary and Findings and Conclusions of the Study” appeared in print near the end of 2014, with some items redacted. But the report as a whole remained classified, with the full, classified versions sent to the relevant agencies. In May 2016, while Obama was still in office, the CIA’s inspector general’s office told Congress that its copy of the report had been accidentally deleted.

I still have that publicly released executive-summary version on my shelves. It represents admirable work on the part of the committee to investigate and publicize a stain on the country and a mark against history. But there’s much that we still don’t know.

A comedy of errors

The history that has set Trump up for what he’s doing now isn’t ancient history. On Monday, a story appeared from Carol Rosenberg at The New York Times with new reporting about these very events.

The 9/11 defendants had a deal in place last year to plead guilty in exchange for the government no longer seeking the death penalty in the case. The agreement was thrown into turmoil in August, when Defense Secretary Lloyd Austin withdrew the agreement. Yesterday, Rosenberg revealed that part of the price for accused plotter Khalid Shaikh Mohammed in accepting the plea deal is to never disclose secret aspects of his torture by the C.I.A. if he is allowed to plead guilty rather than face a death-penalty trial. Khalid Shaikh Mohammed is the man who was waterboarded 183 times.

We’ll see how the courts rule in the fight over the plea agreement. But in the meantime, it’s clear that the deal as planned was a way to convict a monster on lesser charges if he agreed not to tell the world what monstrous things have been done to him. It’s emblematic of Gitmo as a whole, and shows how invested those in power are in making it a showplace for whomever it deems “the worst of the worst” while ensuring that the worst can also be done to anyone who happens to end up there.

This story reminded me of my second trip to Gitmo. During my March 2015 visit, a Florida news crew asked to interview the rear admiral in charge of the detention side of the base. They wanted a better place for the standup, so at the last minute, Gitmo’s media shop was able to arrange a different location.

Shortly after we arrived, we were startled by the sight of a detainee, heavily cuffed and shackled, looking like some Biblical prophet. He was being escorted between two buildings and came within a few feet of us. He called out “Hello!” in a bright voice before his guards realized what was happening and hustled him out of sight.

“Oh, what a fuckup,” one of the media team members whispered under his breath. Another said, “Somebody is not going to be happy about that.”

Our whole time there had been an attempt to let us see the machinery of detention, even to see detainees through two-way glass, without ever having any direct contact with them. But somebody had screwed up, and it was seen as a disaster that we got a glimpse of unscripted life under the veneer that had been planned for us.

Still keeping secrets

A month ago, there were only 15 detainees left in detention on Gitmo. If only the detention facility had been closed (something Republicans in Congress resisted strongly, and even some Democrats were unwilling to do), it would be a very different thing to reopen Guantanamo as a punitive detention site today. But in the world as it is, Trump has already ordered detainees sent there, and dozens have arrived.

Since Gitmo detention was never resolved or fully repudiated, it provided an opening through which the current administration is able to drive a Mack truck. They’re relying on the long history of Guantanamo for both immigrants and terror suspects to help fuse the two categories—creating an imaginary archetype of the “worst of the worst” immigrants. The story goes that these immigrants are so bad that to preserve law and order, they have to be kept under possible punishments the law can administer while being offered none of its protections.

But sometimes we’ll see actions toward accountability, or questions asked by people who can have an immediate effect on what happens next. Terrible things will happen, are already happening. But as long as the system keeps choking on the mess it’s asked to digest, there’s still hope.

Over the weekend, Judge Kenneth Gonzales of the Federal District Court for New Mexico issued a temporary restraining order that would keep three Venezuelan migrants in ICE detention from being sent to Guantanamo. Absent the ability to represent those who have already been transferred this month, lawyers have sought to represent the detainees still in the U.S. who have the most similar profile—the ones most likely to be sent next.

Charlie Savage at The New York Times wrote that the judge issued his order on Sunday during the Super Bowl. The men asking for protection from transfer had recognized some of the detainees in the photos the government sent out from Guantanamo. Their attorneys argued that they might be next.

The government had its own agenda in distributing the photos. But the pictures opened doors for others who were working to protect other immigrants from the same fate. 

Why keep talking about Guantanamo?

The evolution of Gitmo is worth looking at, because it’s a high-stakes microcosm of what’s happening in the country. Those claiming they’re punishing the worst people and even the worst programs of the federal government use this same rhetoric as a fig leaf to benefit themselves. And they will do it in clumsy and ridiculous ways that devolve to a comedy of errors, even as they carry out horrific and inhumane actions.

Yet the translator’s classified name will be read out over the PA. The detainee they don’t want you to see will appear in your path without warning. They will do as much as they can possibly get away with while trying to make it a crime for others to reveal what is actually happening. It seems ludicrous and extralegal, but sometimes they will be able to make the most transparent lies stick.

But sometimes they won’t. This kind of overreach is often undone by even intermittent attention from those who document what’s happening and those who speak up against it. Stay aware through these public spectacles. It is so much easier to do horrific things without consequences if no one is watching.

This is one of those cases where calling your representatives, whether they are Republicans or Democrats, can make a difference. Demand an end to deportations targeting U.S. residents and even citizens. Demand an end to black-hole detention for anyone, let alone the 30,000 people the administration is threatening to send to Gitmo.

As Will Bunch noted in his column this week, a lot of the immigrant detention has been more sound and fury than big numbers so far. But that doesn’t mean they aren’t just in the planning stages for what they’ve promised to do.

Know your rights in filming ICE agents. Show up to support immigrant rights at public demonstrations. Those who are physically at risk or unable to appear in public because of health conditions or citizenship status can find other ways to work behind the scenes. I’ll post more links in the Friday roundup.

All of us have a role to play toward accountability, toward moving our public officials out of a fantasy of authoritarian delusion into the real world, where actions can’t be hidden forever. When this kind of harm is undone, it isn’t typically the result of a natural evolution of the system toward kindness but has been accomplished by people who bring illicit actions to light, by people standing against leaders who have embraced doing the worst they can do for as long as they believe they will get away with it.

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