Attorney General Jeff Sessions said Thursday that he would advise President Donald Trump to send newly captured terrorism suspects to the wartime prison at Guantánamo Bay, Cuba, which he called “a very fine place,” rather than to bring them to civilian court for prosecution by the Justice Department he now runs.
“There’s plenty of space,” Sessions said of the prison. “We are well equipped for it. It’s a perfect place for it. Eventually, this will be decided by the military rather than the Justice Department. But I see no legal problem whatsoever with doing that.”
As a senator, Sessions was a critic of former President Barack Obama’s efforts to close the prison and his refusal to bring any new captives to it. But Sessions’ remarks, in an interview with the conservative talk radio host Hugh Hewitt, were his first extensive public comments on the topic since becoming attorney general last month.
The Pentagon currently houses 41 captives at the remote prison in southeast Cuba, 10 on war crimes charges. Commanders say they could perhaps grow the detainee population by up to 200 more men and women.
Hewitt did not raise the question of whether the United States would seek to take custody of Abu Khaybar, who is suspected of being an al-Qaida militant and was captured last fall in Yemen by another country, nor what should happen to terrorism suspects who are American citizens. Trump said during the campaign that he was “fine” with sending Americans to Guantánamo.
But Hewitt brought up the troubles of the military commissions system operating at Guantánamo, in which the death penalty case against Khalid Sheik Mohammed and four others accused of conspiring in the Sept. 11, 2001, attacks has been mired in years of pretrial hearings with no actual trial yet in sight.
Hewitt observed that the commissions system “is not getting them to trial” and called it “kind of a scandal that no one has faced justice 15 years later.” He asked Sessions whether he expected to accelerate the process.
Sessions told Hewitt that he had asked a “good question.” And while the attorney general reiterated his support for the idea of military prosecutions of al-Qaida members, he also said it was time to think through “to what extent we’re going to use military commissions.”
“We’ve got to get the military on board,” Sessions said. “By now, we should have worked through all the legal complications that the Obama administration seemed to allow to linger and never get decided, so nothing ever happened. So it is time for us in the months to come to get this thing figured out and start using it in an effective way.”
Sessions did not explain what he thought the military had done wrong, nor what he was suggesting as an alternative. But he pointed out that there is no need to prosecute anyone at Guantánamo in the sense that the detainees can be held in open-ended detention without trial while the war continues.
And he spoke disparagingly of transferring the Sept. 11 case to civilian court, which the Obama administration wanted to do before Congress barred transferring detainees onto domestic soil for prosecution.
“In general, I don’t think we’re better off bringing these people to federal court in New York and trying them in federal court where they get discovery rights to find out our intelligence, and get court-appointed lawyers and things of that nature,” he said.
The two factors Sessions identified are not unique to civilian trials. The commissions system’s rules for discovery of intelligence are modeled after civilian courts’ rules, which are set by the Classified Information Procedures Act. And defendants in the military commissions system get government-provided defense lawyers, too.
Sessions’ interview came in a week in which the Trump White House twice put forth false information about Guantánamo.
On Tuesday, Trump falsely said on Twitter that “122 vicious prisoners, released by the Obama Administration from Gitmo, have returned to the battlefield.” But 113 of the 121 former detainees deemed to be “confirmed” recidivists by the intelligence community were transferred under the Bush administration.
At a briefing Wednesday, White House spokesman Sean Spicer acknowledged that Trump had gotten that wrong, but then falsely said that “most” releases under former President George W. Bush were “court-ordered.” Habeas corpus rulings accounted for only three of the 593 ex-detainees transferred by the Bush administration.