Will Guantánamo Close on Biden’s Watch?
As of December 8, 2022, Guantánamo Bay detention facility — a prison offshore of American justice and built for those detained in this country’s never-ending Global War on Terror — has been open for nearly 21 years (or, to be precise, 7,627 days). Thirteen years ago, I published a book, The Least Worst Place: Guantanamo’s First 100 Days. It told the story of the military officers and staff who received the prison’s initial detainees at that U.S. naval base on the island of Cuba early in 2002. Like the hundreds of prisoners that followed, they would largely be held without charges or trial for years on end.
Ever since then, time and again, I’ve envisioned writing the story of its ultimate closure, its last days. Today, eyeing the moves made by the Biden administration, it seems reasonable to review the past record of that prison’s seemingly never-ending existence, the failure of three presidents to close it, and what if anything is new when it comes to one of the more striking scenes of ongoing injustice in American history.
When, in January 2002, those first planes landed at Guantánamo (which we came to know as Gitmo), the hooded, shackled, goggled, and diapered prisoners in them were described by the Pentagon as “the worst of the worst.” In truth, however, most of them were neither top leaders of al-Qaeda nor, in many cases, even members of that terrorist group. Initially housed at Camp X-Ray in open-air cages without plumbing, dressed in those now-iconic orange jumpsuits, the detainees descended into a void, with little or no prison policies to guide their captors. When Brigadier General Michael Lehnert, the man in charge of the early detention operation, asked Washington for guidelines and regulations to run the prison camp, Pentagon officials assured him that they were still on the drawing board, but that adhering in principle to the “spirit of the Geneva Conventions” was, at least, acceptable.
Those first 100 days left General Lehnert and his officers trying to provide some modicum of decency in an altogether indecent situation. For example, Lehnert and those close to him allowed one detainee to make a call to his wife after the birth of their child. They visited others in their cells, talked with them, and tried to create conditions that allowed for some sort of religious worship, while forbidding interrogations by officials from a variety of U.S. government agencies without a staff member in the interrogation hut as well. Against the wishes of Secretary of Defense Donald Rumsfeld and the Pentagon, a lawyer working with the general even called in representatives of the International Committee of the Red Cross.
By the end of March 2002, the U.S. had installed prefab prisons at Guantánamo in which those detainees could be all too crudely housed and had brought in a new team of officers to oversee the operation while pulling Lehnert and his crew out. The new leadership included people reporting directly to Rumsfeld as they put in place a brutal regime whose legacy has lasted, in all too many ways, to this day.
Despite General Lehnert’s efforts, in the nearly 21 years since its inception, Guantánamo has successfully left the codes of American law, military law, and international law in the dust, as it has morality itself in a brazen willingness to implement policies of unspeakable cruelty. That includes both physical mistreatment and the limbo of allowing prisoners to exist in a state of indefinite detention. Most of its detainees were held without any charges whatsoever, a concept so contrary to American democracy and legality that it’s hard to fathom how such a thing could happen, no less how it’s lasted these 7,627 days.
As the 35 prisoners still in Guantánamo illustrate, no president has yet found a way to close that prison completely. George W. Bush, who opened it, did eventually acknowledge that it would be best to shut it down. As he put it to a German television audience in May 2006, “I very much would like to end Guantánamo. I very much would like to get people to a court.”
He was, however, anything but decisive on the subject. As he told a White House press conference that June, “I’d like to close Guantánamo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle — in my judgment, handle these types of people is through our military courts.” That month the Supreme Court invalidated the ad hoc military tribunals that had by then been formed at Gitmo and, in the fall of 2006, Congress passed the Military Commissions Act, formally creating the courts Bush had imagined.
Pointing out that shuttering the prison was “not as easy a subject as some may think on the surface,” the president then began pursuing another approach — namely, releasing uncharged prisoners and returning them to their home countries or transferring them elsewhere. And his administration did, in the end, release about 540 of the 790 prisoners held there. Gitmo accepted its last prisoner in March 2008.
Meanwhile, a 2008 Supreme Court ruling granting detainees the right to challenge their detention by filing habeas corpus petitions in federal court opened a new path toward future freedom. Twenty-three of those detainee petitions were granted before Bush left office, but the prison, of course, remained open.
Obama’s Well-Intentioned but Failed Efforts
Barack Obama initially signaled his desire to close Guantánamo on the campaign trail and then, in one of his first acts as president, issued an executive order calling for it to be shut down within a year. “If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities,” it read, “they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.” With new energy, the Obama administration plunged ahead on the two fronts Bush had halfheartedly pursued: establishing military commissions and transferring certain prisoners directly to their home countries or others willing to accept them.
On Obama’s watch, a reformed version of the Guantánamo tribunals was authorized by the passage of the 2009 Military Commissions Act, resolving five cases, all with guilty pleas. In addition, his administration edged toward closure by transferring nearly 200 more prisoners to willing countries in a vigorous effort over the final year and a half of his presidency. Still, he encountered unanticipated opposition within Congress. Although the military commissions did start anew under Obama, so many years later, their trial of the five prisoners alleged to have been actual 9/11 co-conspirators has still not been scheduled.
In addition, under Obama, numerous habeas corpus petitions were filed in federal court, often falling victim to defeat in appellate courts. As Shayana Kadidal, the Center for Constitutional Rights’ senior managing attorney for Gitmo litigation, summed it up at Just Security: “By 2011, the then sharply conservative D.C. Circuit had rendered it more or less impossible for detainees to prevail on their habeas petitions.”
Obama’s team did seem to add a new possibility for aiding the closure process by transferring one detainee to federal court for trial on terrorism charges. In 2010, Ahmed Ghailani stood trial in New York City for participating in the bombings of two U.S. embassies in East Africa. He was found guilty and sentenced to life in prison on U.S. soil. But in the end, the trial proved fraught with problems, including the fact that the defendant was acquitted on 284 of 285 charges and so it would prove to be not just the first but the last such trial. In fact, in the 2011 National Defense Authorization Act, Congress included a ban on the transfer to the United States of any further Gitmo detainees for any reason whatsoever.
All told, though the Obama administration poured far more energy into the effort to close Gitmo than the Bush administration had, the president failed during his terms in office to do so. In his last year, Obama continued to push hard with the rallying cry, “Let’s go ahead and get this thing done!” He called for renewed federal trials on U.S. soil and prisoner incarceration in the United States, noting that Guantánamo was “contrary to our values” and “undermines our standing in the world” — not to mention the $450 million annual price tag for keeping it open.
He put the blame for failure squarely on the growing political divide in the country and openly worried about what it meant not to succeed. “I don’t want to pass this problem on to the next President, whoever it is,” he said. And, of course, we know just who he was.
Trump’s “Bad Dudes”
Not surprisingly, passing Guantánamo on to Donald Trump fulfilled whatever misgivings he had. Unlike Presidents Bush and Obama, Trump displayed no interest whatsoever in closing it. His instinct was to reaffirm its standing as a legal black hole. On the campaign trail in 2016, in fact, he swore that “we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” On taking office, he almost instantly signed an executive order to keep Gitmo open.
Still, no new detainees were actually added during his term in office. In 2020, he even suggested it should house people infected with Covid, but as it turned out, expanding its activities was as elusive a goal for Trump as closing it had been for his predecessors.
While his threats of adding inmates amounted to naught, his presidency basically put that prison camp on pause. He even stopped the process of transferring five detainees cleared for release by the Obama team. Only one prisoner, Ahmed Muhammad Haza al-Darbi, who had pleaded guilty in 2014 in the military commissions, was released during Trump’s time in office. Meanwhile, the military commissions remained essentially stalled on his watch and Congress continued the ban on moving any of the detainees to the U.S.
When Joe Biden entered office, 40 prisoners remained at Guantánamo Bay. In his first weeks, his aides called for a formal review of their cases and his spokesperson Jen Psaki announced the administration’s intention to close the prison camp before he left office. Having learned from Obama’s mistakes, however, Biden made no sweeping public promises.
His administration nonetheless put renewed energy into both transfers and trials. The military commissions have indeed ramped up in recent months. Pretrial hearings have recently been held in the four pending military tribunal cases. In addition, plea deals that would take the death penalty off the table are reportedly being negotiated for the five 9/11 defendants.
Three of the five detainees cleared for release by the Obama administration have finally been transferred to other countries, while all but three of the 27 prisoners not cleared when Biden took office have been greenlighted to go home or to a third country. In doing so, several previously blocked thresholds were crossed. As of early 2021, when the government cleared detainee Guled Hassan Duran, it signaled that, for the first time, there was a willingness to release even those who had been subjected to torture while held at CIA “black sites” in the early years after 9/11. The point was made even more strongly three months later when Mohammed al Qahtani, who experienced some of the worst treatment at American hands, was also finally released.
Meanwhile, in September 2022, President Biden appointed former State Department coordinator for counterterrorism and former ambassador to Kosovo, Tina Kaidanow, to oversee the transfer of prisoners cleared for release. While her position doesn’t replicate the formidable office of the Special Envoy for Guantánamo Closure that Obama established and Trump nixed, it is a promising move. The job of arranging each prisoner transfer, assuring the security of the detainee, and assessing that the release will not pose a danger to the United States is challenging but achievable, as prior releases have demonstrated. All told, recidivism rates for Guantánamo detainees, as reported by the Director of National Intelligence, have been 18.5%, though only 7.1% for those released under Obama.
In the End…?
The last question, these 7,627 nightmarish days later, might be this: Are there any options for the final Gitmo prisoners? In 2017, military defense lawyers Jay Connell and Alka Pradhan, joined by researcher Margaux Lander, pointed out that, under international law, victims of “torture, and cruel, inhuman and degrading treatment” have the right to full rehabilitation. In addition to seeking the removal of the death penalty in their cases, the 9/11 defendants at Gitmo have reportedly asked for access to a torture rehabilitation program.
Pradhan, who represents 9/11 defendant Ammar al Baluchi has summed the situation up well:
“The United States has utterly failed to give these men either a fair trial or medical treatment for their torture in violation of their legal obligations. Most of the evidence in the 9/11 case is torture-derived, and the men are deteriorating quickly from the brain and other injuries inflicted by U.S. torture nearly 20 years ago. The Department of Defense has confirmed that they don’t currently have the ability to provide complex medical care at Guantanamo, so the most ethical solution is to transfer the men to locations where they can obtain the care they require.”
In fact, after all these years in prison, releasing those who might otherwise still stand trial and putting them in rehabilitation centers might indeed be a good idea.
There are many ways to address a wrong. Arguably, the greater its magnitude, the more leeway should be given for subsequent actions. As the Biden administration has taken steps towards closing Gitmo, perhaps the gesture of sending the defendants in the military commissions to rehabilitation programs is a good one.
For years, General Lehnert has told Congress, media outlets, and anyone who would listen that it remains imperative, however difficult, to finally shut the prison down. As he has written,“Closing Guantánamo is about reestablishing who we are as a nation.” It might not quite accomplish that, but it would certainly be a formidable step in that direction. After all, its legacy of torture, indefinite detention without charges or trials, and the reckless disregard for the rule of law will no doubt haunt us for years.
There is no way to fathom the harm caused by the torture, cruel treatment, legal limbo, injustice, and dehumanization that has become the definition of Guantánamo. But for the first time in all these years, its actual closure might realistically be on the horizon. One can always hope, right?
Copyright 2022 Karen Greenberg
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Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author most recently of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump (Princeton University Press). Julia Tedesco, Adam Sticklor, and Claudia Bennett conducted research for this article.