At the beginning of his term, US President Joe Biden said that he would seek to close the notorious Guantanamo detention center, and directed the Department of Defense to study the best ways to do so, but in light of the current rhythm of the rate of processing time for detainees’ cases, it may take several more years to resolve them.
Biden wisely avoided public pledges to close the prison that former President Barack Obama made and could not deliver. But to achieve the goal of ending the extrajudicial detention of prisoners at Guantanamo and its egregious violations of basic human rights, and abandoning the right to a fair trial, will require more effort from Biden.
Releasing the remaining prisoners would require a tangle of laws, policies, procedures, and bureaucratic secrecy. These are not simple tasks, but they are within the authority of the White House to accomplish them, if the operation were given a much higher priority. And the president can use his authority to order the Departments of Defense and Justice, the intelligence agencies, and other relevant agencies to make this happen as quickly as possible.
And the moral imperative to do so only grows stronger over time. As long as there are people held in Guantanamo Bay, America’s condemnations of the brutal detention centers in China, Syria and other countries will be hollow. There is a particular cruelty committed over time. On April 21, a senior official of the International Committee of the Red Cross issued a rare public call for the US military to provide better care for the prisoners, as they “suffer symptoms of accelerated aging exacerbated by the cumulative effect of their experiences.” And the years they spent in detention.
And as the 2024 presidential campaign season begins, Republicans will likely characterize any efforts to close Guantanamo Bay as soft on terrorism. A victory for Donald Trump, or a like-minded candidate, could end any such effort, as Trump did when he was in the White House.
There are two specific and urgent tasks before the Biden administration: The first is to find countries willing to take in the 16 men who did not pose a terrorist threat, and who were allowed to leave, but did not do so, usually because their countries of origin are in chaos, and no other country has been found to take them.
The second is to clarify the “principles of policy,” which would open the way for plea bargains for those cases in which convictions are no longer possible. Eleven men remain with active cases before the Special Military Commissions, including five accused of roles in the September 11 attacks. None of them can be convicted, as they have been subjected to torture and other ill-treatment while in detention.
It is noteworthy that Congress imposed a ban on allowing any of the Guantanamo detainees to enter US soil, whether for trial, detention or even medical treatment. So there is almost no other place to imprison those who reach plea bargains, and while their cases drag on and the prisoners’ health deteriorates, teams of doctors and surgeons must be regularly flown to the island to treat them.
If Congress lifts the ban, these prisoners could serve their sentences, after a plea bargain, in a maximum security prison in the United States. As long as the ban is in place, the only option is to keep the detainees in Guantanamo, at a cost of $13 million per man per year, many times the cost of being held on US soil. When these issues are resolved, Guantanamo as a legal black hole will cease to exist.
The ability to operate outside the normal constraints of law and human rights is why this legal black hole was created in the first place. The prison was established after the September 11 attacks as a secret detention camp for especially dangerous prisoners, and the US government initially considered it to operate outside the legal jurisdiction of the United States. This gave the CIA, and other agencies, legal cover to conduct “enhanced interrogations” that amounted to torture, and to subject prisoners to cruel, inhuman, and degrading treatment.
There is little evidence that these interrogations yielded much intelligence, but they ensured that much of the evidence against the captives would not be admissible in court, even if military prosecutors allowed their torture to be discussed openly in court. Because of the torture, and a myriad of other legal problems – including allegations of secret government wiretapping of conversations between prisoners and their lawyers – there is little chance detainees will receive a fair trial. The special military commissions that were set up to try the prisoners brought to trial only a very small number of prisoners.
“The time for expecting justice through the legal process is over,” Gen. John Baker testified, adding, “The best we can hope at this point, more than 20 years after the crimes were committed, is to end this sordid chapter in American history. This goal can only be achieved through a negotiated solution to the issues.
And President Biden has the authority and the obligation to help get there.
• As long as people are being held at Guantanamo, America’s condemnations of other countries’ brutal detention centers will ring hollow.
• As the presidential election campaign gets underway, Republicans are likely to describe any effort to close Guantanamo as being soft on terrorism.