President Biden’s Decisive Moves Towards the Closure of the Prison at Guantánamo Bay

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By Andy Worthington, September 28, 2022

When President Biden was elected in November 2020, opponents of the continued existence of the prison at Guantánamo Bay were cautiously optimistic that there would be renewed movement towards the closure of the prison.

After four years of Donald Trump, it was hard not to have some semblance of hope that there would be progress towards finally ridding the U.S. — and the world — of this lingering symbol of the brutal and lawless excesses of George W. Bush’s "war on terror," where men have been subjected to torture and other forms of abuse, and where the majority of the 779 men held by the military since the prison opened on January 11, 2002 have been imprisoned without charge or trial, and with little effort made to ensure that the law extended to them in any meaningful sense.

Nearly two years into Biden’s presidency, our cautious optimism has been both rewarded and thwarted.

No doubt chastened by the Republican backlash that greeted President Obama’s stated intention, as soon as he took office, of closing Guantánamo within a year, Biden took a low-key approach instead — not speaking openly about Guantánamo at all, and only indicating, via his press secretary, that there would be a review of the prison’s operations, and that the administration hoped to close it by the end of his presidency.

Approving the release of "forever prisoners" via the Periodic Review Boards

For months, nothing happened to suggest that Biden recognized that even the most cautious approach to Guantánamo required some sort of perceptible movement, but, from May 2021 onwards, Periodic Review Boards — a parole-type process established under President Obama, which had reviewed 64 men’s cases between 2014 and 2016, and had approved 38 of them for release — began approving for release some of the men who had been through the PRB process, but had had their ongoing imprisonment without charge or trial upheld, on the basis that they still constituted some sort of threat to the U.S. These men were described in the media, with some accuracy, as "forever prisoners."

Biden inherited 40 prisoners from Donald Trump — who released just one man in his four years in office — and 22 of them were "forever prisoners." Six others had been approved for release, while ten others were facing trials; another had been convicted, and one other was awaiting sentencing as a result of a plea deal.

What was significant was that Biden seemed to have taken on board recommendations by lawyers and NGOs who had met with his transition team to discuss Guantánamo, and had also taken on board calls by 24 of his Senators and 75 Democratic members of the House of Representatives to facilitate the closure of Guantánamo by recognizing that it was intolerable — after nearly 20 years of the prison’s existence — to continue holding anyone indefinitely without charge or trial.

As a result, in the 16 months since May 2021, all but three of the "forever prisoners" have been recommended for release — three in May 2021, two in June, three in October, five in November and December, two in February this year, two more in April, one more in July, and another just last week.

This is significant progress, of course, but it is sadly diminished by the fact that the majority of these 19 men are still held. Biden has released just four men since he took office — the last two of the 38 men approved for release by PRBs under Obama, an Afghan who, crucially, had his release ordered by a court as well as being approved for release by a PRB under Biden, and a severely mentally ill Saudi, who also had his release approved by a PRB under Biden, but had also been challenging his imprisonment in court.

Approved for release but still held

For the 21 others, however — 17 others approved for release by PRBs under Biden, plus the four other approved for release before he took office (three under Obama’s first review process, the Guantánamo Review Task Force, and one under Trump) — there has been a distinct lack or urgency in securing their release.

In the cases of some of these men, this is because third countries must be found that are prepared to offer them new homes, because it is unsafe for them to be sent back to their home countries. This is the situation faced by the nine Yemenis approved for release — and, presumably, for Guled Hassan Duran, a Somali, and Ismael Ali Bakush, the Libyan who has just been approved for release.

In other cases the delay appears to be unjustifiable — for the three Pakistanis including Saifullah Paracha, Guantánamo’s oldest prisoner, for example, as well as three Saudis, Mohammed Abdul Malik Bajabu, the prison’s sole Kenyan prisoner, and Saeed Bakhouch, an Algerian. For all of these men, their release ought to be quite straightforward.

One of the problems has undoubtedly been the kind of inertia that, even if not deliberate, attaches itself to processes of clearance that are purely administrative, rather than involving the weight of the courts. Simply put, no legal mechanism exists to enforce the release of men whose cases were reviewed through an administrative process that was only invented in 2013.

Perhaps more significantly, however, the failure to secure these men’s release stems from Biden’s failure to appoint an official in the State Department to deal specifically with Guantánamo issues. Obama established a Special Envoy for Guantánamo Closure, involving officials who, over several years, arranged the resettlement of many dozens of prisoners, but that office was subsequently shut down by Trump, and, crucially, was not revived by Biden when he became president.

Now, however, there are finally signs that the administration has recognized the futility of trying to close Guantánamo without a senior official overseeing the often complicated business of releasing, and, in particular, resettling former prisoners.

As Jess Bravin reported for the Wall Street Journal last week, "The Biden administration is revamping its effort to close the Guantánamo Bay prison, for the first time appointing a senior diplomat to oversee detainee transfers." The new "special representative," Tina Kaidanow, is a former ambassador, who was also the Coordinator for Counterterrorism under Obama from 2014 to 2016, and this is undoubtedly a positive move, even if some insiders told Bravin that the "new special representative position … lacks the clout similar offices had under the Obama administration, where Guantánamo envoys had direct access to the secretary of state."

This caveat aside, I hope that this official appointment will give Ms. Kaidanow the clout and the resources to start releasing some of these 21 men, to negotiate the resettlement of others, and also to find a new home for Majid Khan, a Pakistani citizen and a former "high-value detainee," who was was awaiting sentencing as a result of a plea deal when Biden took office, and whose sentence, subsequently agreed, ran out on March 1 this year.

Plea deals in the military commissions

With the exception of the three remaining "forever prisoners" — Abu Zubaydah, Muhammad Rahim and Abu Faraj al-Libi, all "high-value detainees" who have never been charged, but whose potential release is still regarded as too perilous by the review boards — the rest of the men held have all, over the years, been charged in the military commission trial system that has long struggled to establish any kind of legitimacy.

Dragged ill-advisedly from the history books by Dick Cheney in the months after the 9/11 attacks, with the intention of using evidence derived from the use of torture, and swiftly executing those found guilty of terrorism, the commissions collapsed without a single conviction in June 2006, when the Supreme Court ruled that they were illegal, violating both the Uniform Code of Military Justice and the Geneva Conventions. They were then revived by a pliant Congress, securing three convictions before Bush left office — a plea deal by the Australian David Hicks, who returned home shortly after, a short sentence for Salim Hamdan, a Yemeni driver for Osama bin Laden, who was also freed soon after, and a life sentence for another Yemeni, Ali Hamza al-Bahlul, after a one-sided trial in which he refused to mount a defense.

Hicks’ and Hamdan’s sentences were subsequently overturned on appeal, as were some of the grounds for al-Bahlul’s conviction — specifically, all the successful appeals concluded that "providing material support for terrorism" was an illegitimate charge, having been invented as a war crime by Congress. However, al-Bahlul’s conspiracy conviction was allowed to stand, and he is still held, isolated from all of his fellow prisoners as he has been for nearly 14 years.

When Obama took office, he suspended the commissions pending a review, but then revived them once more, and presided over the convictions —all via plea deals — of Ibrahim al-Qosi and Noor Uthman Muhammed (both from Sudan), the Canadian Omar Khadr (shamefully prosecuted despite having been a juvenile at the time of his capture), Majid Khan, and Ahmed al-Darbi, a Saudi. All were subsequently released, apart from Khan, and Noor Uthman Muhammed also subsequently had his conviction overturned.

Under Biden, another plea deal has been secured — with Abd al-Hadi al-Iraqi, one of the last prisoners to arrive at Guantánamo, in 2007, whose sentencing is expected to be capped at ten years, and will take place in two years’ time, to allow the U.S. government to find what the the New York Times described as "a sympathetic nation to receive him and provide him with lifelong medical care," because of the degenerative spinal condition from which he suffers, and also to hold him while he serves out the rest of his sentence.

This leaves nine men, all "high-value detainees" held in CIA "black sites" before their transfer to Guantánamo in September 2006, currently facing charges — the five men accused of involvement in the 9/11 attacks (Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin Attash, Ammar al-Baluchi and Mustafa al-Hawsawi), Abd al-Rahim al-Nashiri, accused of "planning attacks on three vessels, including the 2000 bombing of the USS Cole that killed 17 sailors," as Jess Bravin described it, and three other men accused of involvement in terrorist attacks in south east Asia, who were only finally charged at the very end of the Trump administration.

The problem for the Biden administration in continuing to pursue trials for these men is that the 9/11 co-accused and al-Nashiri have been involved in pre-trial hearings for over a decade, and yet trial dates appear be no closer than ever before.

The main reason for this is because the men were all subjected to torture in the CIA "black sites," and, as a result, any notion of a fair trial has been fatally compromised. As the legal campaigning group Fair Trials explains, "The use of torture is not only an egregious human rights violation in itself, but it also leads to other serious human rights violations, including the violation of the right to a fair trial. The use of torture, and evidence obtained by torture, taints the entire criminal justice process, eroding the rule of law and public trust in the system’s ability to deliver justice."

Practically, what has been happening in these pre-trial hearings is that a permanent impasse seems to have been reached, with, on the one hand, the defense teams seeking to use evidence of their clients’ torture, while prosecutors do all they can to hide it. The situation is further complicated by the fact that the military commissions themselves are full of holes, as ought to have been expected from a system invented by Congress in 2009, rather than one established over centuries — like the federal court system, for example, which has successfully prosecuted hundreds of terrorism-related cases while the military commissions have been permanently glitching in an endless Groundhog Day. Further complicating matters has been the government’s insistence on seeking the death penalty in the 9/11 trial and al-Nashiri’s case, because capital cases involve what the Death Penalty Information Center describes as "strict procedural safeguards."

In an attempt to break the deadlock, in 2017, Harvey Rishikof, the commissions’ Convening Authority, who is "responsible for the overall management of the military commissions process," and "empowered to convene military commissions, refer charges to trial [and] negotiate pre-trial agreements," began "negotiations with the Sept. 11 defendants that could have led to guilty pleas if executions were off the table," as Jess Bravin explained, adding that the Trump administration then "removed Mr. Rishikof from his post for what it said were unrelated reasons." Earlier this year, however, as Bravin also explained, "the Biden administration renewed those negotiations and the White House said it wouldn’t interfere."

In a separate report on September 11, CBS News discussed the plea deals with James Connell and Alka Pradhan, defense attorneys for Ammar al-Baluchi, one of the five 9/11 co-accused. "All five defendants and the government are all engaged in good faith negotiations, with the idea of bringing this trial which has become a forever trial to an end," Connell said.

He added that "Mr. al-Baluchi's number one priority is obtaining medical care for his torture. In order to get that medical care, he is willing to plead guilty to a substantial sentence at Guantánamo in exchange for a guarantee of medical care and dropping the death penalty."

Alka Pradhan told CBS News about the torture to which al-Baluchi was subjected, explaining that the technique that "had perhaps the most lasting physical impact was what they called 'walling,' He had told us that his head was bashed against a wall repeatedly until he saw sparks and fainted. The result of that, as we've had several medical experts examine him, is lasting brain damage."

When she was asked if "declining to pursue the death penalty was fair," Pradhan said, with some justification, "The United States government failed all of us after Sept. 11 in their decisions to use illegal techniques and illegal programs … In doing so, it rather corrupted all the legal processes."

A spokesperson for the commissions refused to answer questions from CBS News about the 9/11 case, but confirmed that "the parties are currently engaged in preliminary plea negotiations," and made reference to recent court filings.

The end in sight?

If all goes as well as can possibly be imagined, the number of prisoners held at Guantánamo could be down to 14 by some time next year — the nine men charged, Abd al-Hadi al-Iraqi, awaiting his sentence, Ali Hamza al-Bahlul, serving his lonely life sentence, and the three "forever prisoners," who need to be either charged or recommended for release if the administration’s recognition that endless imprisonment without trial is unacceptable is to be fulfilled.

At that point, President Biden would surely have a strong case to make that the prison’s annual price tag, over $540 million a year — in other words, at least $38.5 million a year per prisoner — is simply unacceptable, although we should be wary of becoming too hopeful. Republicans obsessed with inflicting the death penalty on the 9/11 accused will no doubt do all they can to oppose plea deals, failing to recognize that it is their obsession with the death penalty that prevents trials from taking place.

In addition, it would be foolish to expect that, even with a new "special representative" for Guantánamo, it will be easy to find countries prepared to offer homes to those prisoners against whom, over the years, often exaggerated claims have been made, from which, eventually, the U.S. authorities have walked back, even though those initial claims still linger, and, in fact, are part of the "evidence" provided to would-be host countries when resettlement negotiations take place — something that Tina Kaidanow might need to think about as she tries to find new homes for these former prisoners.