That their trial, delayed by years of initial proceedings, is not expected to begin until at least 2022 is a stark example of the problems and dark detours that have characterized the detention operation since the first terrorism suspects arrived there after the 9/11 attacks.
The high-security facility, located at a U.S. naval base in Cuba’s southeast, has receded from the headlines as its population has dwindled from over 700 at its peak to just 39 today, but Guantánamo remains a global symbol of U.S. excesses after 9/11, including the brutal mistreatment of prisoners and the detention of suspects for two decades without charge.
“The actual practicalities of closing Guantánamo are easier than they’ve ever been,” said Michel Paradis, a law professor who has represented Guantánamo detainees, many of them now aging and infirm. “That doesn’t mean the politics are any easier.”
Biden administration officials say they are taking steps toward closing the prison, citing the repatriation this summer of a Moroccan man. But eight months into Biden’s presidency, officials have yet to reveal specifics about how they intend to navigate legal and political challenges that stymied an earlier closure effort by the president’s former boss, Barack Obama.
Neither has the administration answered questions about how it intends to handle a small group of prisoners who have never been charged but are seen as posing ongoing threats; where it proposes to house prisoners winding their ways through the glacial military commission process; or how to account for the fact that convictions by the commission have been overturned by U.S. courts.
On Thursday, State Department spokesman Ned Price said the White House was leading a review of the “state of play” on Guantánamo. “This is a facility that is costly not only in the literal sense, but it is costly in terms of our international standing,” he told reporters.
The administration’s low-profile handling of Guantánamo — an issue to which Biden, unlike Obama, has referred only infrequently — may be a nod to the trade-offs officials face between their goal of winding down this part of the 9/11 era and the political costs and legal challenges it is likely to entail.
Republicans including Senate Minority Leader Mitch McConnell (Ky.) and James M. Inhofe (Okla.), the ranking member of the Senate Armed Services Committee, have charactered a closure of the prison as a threat to U.S. security.
Attorneys, former officials and advocates say the administration has yet to demonstrate that it is prioritizing the closure effort, for example by reviving a high-level Guantánamo envoy position eliminated by President Donald Trump. Critics note that closing the prison could become more difficult for Biden as time passes, especially if Democrats lose their narrow majorities in Congress.
“This problem will not solve itself,” said one former official who worked on detention issue during previous administrations and, like others, spoke on the condition of anonymity to comment candidly. “They have to focus on it.”
The little that White House officials have said has centered on their hope of finding new overseas homes for the 10 detainees already approved for transfer by an interagency review board.
“The Biden administration is actively engaged in deliberate, thorough interagency efforts to reduce the detainee population responsibly and closing the Guantánamo facility,” a senior official said.
The politics of transfers could be especially difficult for Biden after the chaotic U.S. military withdrawal from Afghanistan, which has intensified Republican criticism of his handling of national security.
Four of the five detainees released in a 2014 swap for an American seized by militants in Afghanistan have been appointed to senior positions in the Taliban’s new interim government there. One of the men, whom the United Nations has described as responsible for war crimes against minority groups in Afghanistan, is now a top security official.
Officials say they are exploring all legal means for handling the remaining prisoners, who they say represent the most challenging cases and might not obtain the approval of the government clearance board for transfer. Some advocates suggest that officials should find a home for them anyway in a country that can provide security oversight.
Unlike during the Obama administration, Biden aides have not voiced interest in trying to move detainees into civilian or military facilities in the United States for pre- or post-trial detention. Such a step would require changes to laws, passed in response to Obama’s closure campaign, prohibiting the executive branch from spending money to relocate prisoners to the U.S. mainland or to certain unstable foreign locations, such as Yemen.
Cliff Sloan, who was a high-level envoy for Guantánamo’s closure during the Obama administration, said the Biden administration needed to establish a similar position, someone who could steer deliberations between government agencies and liaise with senior officials abroad.
No one in the State Department’s counterterrorism bureau, the lead office for negotiating transfer deals, is assigned to work exclusively on Guantánamo. A State Department official said a number of transfer negotiations are underway.
It is essential, Sloan said, to have “someone who is focused on this 24 hours a day.”
Hina Shamsi, director of the national security project for the American Civil Liberties Union, called successive administrations’ failure to close the prison a “disgrace.”
“It is both necessary and possible for the Biden administration to responsibly end indefinite military detention and unfair trials in order to close Guantánamo,” she said.
Potentially an even more vexing challenge than resettlements is the prison’s military commission process. Although the trials of about half a dozen detainees have resulted in convictions over the years, most of those have been overturned on appeal, one of the many problems that have plagued the ad hoc trial system from its start.
Because of draconian security requirements and the toxic legacy of harsh interrogations that included waterboarding and “rectal rehydration,” defense lawyers have had to battle for access to basic evidence and persistent fears that even their conversations with their clients are surveilled.
A revolving door of judges and officials overseeing the trials has further slowed the proceedings. In 2019, a federal court threw out more than three years of proceedings in a capital case, the trial of a Saudi man accused in the deadly 2000 bombing of the USS Cole, because of an apparent conflict of interest on the part of the presiding judge.
Guantánamo’s remote location, making proceedings and access to clients possible only via periodic military flights, has been another impediment. Those challenges grew worse during the pandemic, when visitors and attorneys were required to quarantine for two weeks after arriving at the base.
Despite the ever smaller population, the cost of operating the prison and court remains $230 million a year. With the oldest prisoner now in his early 70s, more detainees are likely to begin experiencing health problems that require care beyond the scope of facilities at the base.
Those issues intersect most dramatically in the case of the suspected 9/11 plotters. Administration officials have not said they will try, as Obama did, to move that or other trials to federal courts, which have convicted hundreds of terrorism suspects since the 2001 attacks. Neither have officials said where they would plan to detain the men after any convictions if the commissions can run their course and the prison is closed.
Advocates have called on Biden to consider alternatives to commission trials, including plea deals that could give prisoners credit for time served. Already, one prisoner, Majid Khan, is set to be released as early as next year as part of a plea arrangement that required his cooperation and headed off proceedings that could have revealed new information about his mistreatment by the CIA.
In a statement, the office of military commissions declined to speculate about when trials could end, citing the complexity of the cases.
Khan’s lead defense attorney, Wells Dixon, of the Center for Constitutional Rights, is among the lawyers who have characterized the military commissions as broken beyond repair.
“If you believe the military commissions were established in order to provide justice for terrorist attacks like 9/11, they have been a complete failure,” Dixon said. “But if the military commissions operate to provide a veneer of legal process to maintain the status quo, they’ve been a tremendous success.”
Abigail Hauslohner contributed to this report.