Biden Administration Announces “Robust” Review of Guantánamo, and “Intention” to Close the Prison

Campaigners calling for the closure of the prison at Guantánamo Bay outside the U.S. Congress on January 11, 2021, the 19th anniversary of the opening of the prison. (Photo by Alli Jarrar of Amnesty International).

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By Andy Worthington, February 14, 2021

On Friday (Feb. 12), campaigners hoping that the Biden administration will commit to the closure of the prison at Guantánamo Bay were further reassured when White House press secretary Jen Psaki, "[a]sked whether Biden would shut" the prison "by the time his presidency ends," as Reuters described it, told reporters, "That certainly is our goal and our intention."

"There will be a robust interagency policy," Psaki added, also noting that "[t]here are many players from different agencies who need to be part of this policy discussion about the steps forward."

The comments were the first to be made publicly by an administration official since defense secretary Gen. Lloyd Austin told the Senate in written testimony during his confirmation hearing, "I believe it is time for the detention facility at Guantánamo to close its doors," although, as the Associated Press noted, "The announcement of a closure plan was not unexpected. Biden had said as a candidate he supported closing the detention center."

Following up, Emily Horne, a spokeswoman for the National Security Council, told Reuters, "We are undertaking an NSC process to assess the current state of play that the Biden administration has inherited from the previous administration, in line with our broader goal of closing Guantánamo," adding, "The NSC will work closely with the Departments of Defense, State, and Justice to make progress toward closing the GTMO facility, and also in close consultation with Congress."

However, "[s]ignaling that deliberations are still at an early stage," as Reuters described it, Horne also said that "a number of key policy roles still need to be filled," in the relevant government departments, adding, "We need to have the right people seated to do this important work."

Reuters noted that "two people familiar with the matter" had told them that "[a]ides involved in internal discussions are considering an executive action to be signed by Biden in coming weeks or months," signaling what the news agency described as "a new effort to remove what human rights advocates have called a stain on America’s global image" — although narrowing criticism simply to "human rights advocates" rather tends to underplay the extent to which Guantánamo, as a place of, largely, indefinite detention without charge or trial, is actually an affront to everyone who believes in the rule of law.

For the New York Times, however, veteran Guantánamo reporter Carol Rosenberg suggested that the "executive order" idea, which came from a "leaked Biden administration transition plan," has apparently been abandoned in favor of the NSA-led process.

Rosenberg noted how, in a recent interview, Representative Adam Smith, the Democratic chairman of the House Armed Services Committee, and a proponent of the prison’s closure, said that, "rather than seek to close it by executive order, the administration should 'build the argument and the case that this is the right policy' in order to change the law."

He added that he "thought politicians might be more receptive to the idea of moving the last few prisoners to the United States" because Guantánamo "is not a cost-effective place to detain 40 individuals," costing at least $13 million a year for each of the 40 men still held.

Nevertheless, closing Guantánamo, as Rosenberg describes it, "has become a political flash point, with supporters of keeping the prison open accusing supporters of closing it of being soft on terrorism or being willing to bring accused terrorists onto American soil." She noted, however, that Smith "bristled at the suggestion," pointing out that the 40 prisoners at Guantánamo are no "more dangerous than the hundreds of terrorists, not to mention sociopathic murderers and pedophiles and child killers and all manner of evil who we safely incarcerate in the United States of America."

Republican obstruction

Despite this, Republicans have a long history of opposing efforts by the Democrats to close Guantánamo. Under Barack Obama, when Joe Biden was Vice President, they responded to his executive order promising to close Guantánamo by "outlawing the transfer of any detainee to the United States for any reason — not for trial, imprisonment or medical treatment," as Carol Rosenberg described it.

Reuters pointed out that the federal government "is still barred by law from transferring any inmates to prisons on the U.S. mainland," and that, "Even with his own Democratic party now controlling Congress, their majorities are so slim that Biden would face a tough challenge securing legislative changes because some Democrats might also oppose them."

Some progress can, however, be made initially without Congress. As Reuters described it, "A revived Guantánamo strategy is expected to focus initially on further decreasing the number of prisoners by repatriating them or finding other countries to accept them, according to the people familiar with the matter." This will probably also involve re-establishing the State Department post of the Envoy for Guantánamo Closure, which was "created by Obama but eliminated by Trump, to resume negotiations with other governments on detainee transfers."

In addition, the parole-type Periodic Review Board process, which led to the release of 36 prisoners under Obama, can and should be vigorously revived under Biden. Although it nominally continued under Trump, its panels of military and intelligence officials failed to recommend a single prisoner for release until just months before Trump’s departure, with most hearings boycotted by the prisoners, who had concluded that, under Trump, the entire process had become a sham.

However, opposition remains in Congress. After Gen. Austin told the Senate that the new administration would seek the closure of Guantánamo, his comments, as Reuters described it, "drew a letter of rebuke signed by seven Republican House members, all military veterans."

Representative Mike Waltz, one of the signatories, claimed in a tweet, "If we release these GITMO detainees, they’ll become rockstars in the Islamist Extremist world, posing an even greater threat to America and the world."

Furthermore, after Friday’s announcement, Sen. John Cornyn, a Republican from Texas, said, "The Democrats’ obsession with bringing terrorists into Americans’ backyards is bizarre, misguided, and dangerous. Just like with President Obama, Republicans will fight it tooth and nail."

While these comments are ludicrous, they are an important reminder of the fanatical opposition to the closure of Guantánamo that exists in some Republican circles, and whatever the Biden administration plans, it will need to be committed.

Guantánamo can be closed

Here at "Close Guantánamo," we will continue to point out that, 19 years since the prison at Guantánamo opened, it is outrageous and indefensible that six of the 40 men still held are still held despite having been approved for release by high-level government review processes, and that 22 others are specifically and unjustly held indefinitely without charge or trial, and we believe that President Biden and his administration should make the release of as many of these men as possible a priority.

For the others, facing charges in the military commission trial system, justice needs to be delivered in a forum that, unlike the commissions, is not caught up endlessly in a struggle by the prosecutors to hide all evidence of the men’s torture in CIA "black sites," and who seem not to notice that that struggle undermines all efforts at justice.

Closing the prison may look difficult, but it is important for the Biden administration to remember that it is possible. And as we have been pointing out — and will continue to point out — no president should want the responsibility of marking the 20th anniversary of the opening of a shamefully lawless place like Guantánamo, and yet that anniversary is just eleven months away.