Victor Juhasz
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
Closing Guantanamo must be among the cascade of revocations, reversals, and festering wounds that demand the Biden presidency’s immediate attention on day one. The Guantanamo Bay detention facility opened in January 2002 to hold supposedly “the worst of the worst” in the war on terrorism. Its continued existence 19 years later not only perpetuates violations of law, human rights, and morality, but impedes the country’s ability to heal from the attacks of September 11, 2001. Biden needs to close Guantanamo and do so quickly. And there is a path.
It’s easy to know what not to do. Obama’s well-intentioned but failed attempt to shutter the facility left us with some instructive lessons.
First, whatever steps are taken should be decisive and immediate. Obama’s plan to study the system of detention and trial before going forward with policy decisions, honorable as the approach was, should not be repeated. Part of what the Obama team did was to gather the information strewn about in faraway places and assemble dossiers on each of the detainees. Today, there are enough individuals with a deep knowledge of the cases and the operating laws at Gitmo to enable informed decisions to be made on day one.
Second, in the spirit of doing things immediately, Biden cannot wait for Congress. For a decade now, Congress has used the National Defense Authorization Act funding bill to ban transferring any detainees to the United States for any reason whatsoever. As frustrating and humiliating as this is for a country that prides itself on its criminal justice system, Biden should accept the reality that the detainee trials cannot happen in this country. Nor can incarceration following any convictions be in the U.S. In a perfect world, this year’s NDAA, which is scheduled to pass in December, would remove this restriction on transfer to the homeland for trial, but no such provision is in this year’s bill and no amendments for transfer have ever passed Congress since the ban was implemented in 2011.
Third, Biden needs to do what Obama refused to do: put the military commissions system on permanent pause. The system has failed year after year to make progress, even in the most important case of all, that of the 9/11 defendants who are accused of participating in the attacks of that fateful day. Obama halted the commissions on day one but, with his approval, Congress revived them in a revised form before his first year was out.
Biden should issue a series of executive orders on day one. A first executive order would announce that Guantanamo is closing, effective immediately.
The numbers give lie to the perceived intractability of closing Gitmo. As it stands now, there are just 40 detainees held at the prison facility, down from the total number of 779 ever held there. George W. Bush released over 500, deeming them to be “no longer enemy combatants.” Obama released another 197. Trump has released one, a cooperator who had been promised release for his cooperation. The remaining 40 fall into three categories: those who have been cleared for release, those who have been charged or convicted by the military commissions, and those who are deemed to be “forever prisoners,” as New York Times reporter Carol Rosenberg so aptly labeled them years ago.
The first category is the easiest to address. At the end of the Obama term, five individuals had been cleared for release by the Periodic Review Board, a deliberative group of civil servants from national-security agencies across government. Another five are reportedly deemed eligible for transfer, and several more would likely be cleared for release once the mandate for closure was issued. The special envoy for Guantanamo transfer, who commendably arranged for over 70 transfers in the final 18 months of the Obama years, was not able to complete arrangements for these five, who though cleared, have remained at Gitmo for the entirety of the Trump years. Trump got rid of the special envoy position. The result is the imprisonment of detainees who have neither been charged nor released, and who those in a position of responsibility agree should be free.
A second group of detainees are the 12 who have been charged or convicted by the military commissions system. These include individuals alleged to have participated in lethal terrorist attacks against the U.S., many of whom were subject to torture at CIA black sites. These individuals should be offered plea bargains. For this to happen, Biden must insist that the death penalty, which many of them are facing, be taken off the table. Among those facing the death penalty are the alleged 9/11 co-conspirators, whose trials have yet to begin. The failure to bring them to trial has harmed the individuals, principles, and institutions attached to the case: the 9/11 victims’ families, the viability of due process for defendants, and the psyche of the American public as a whole, for whom the 9/11 trial can bring closure. Taking the death penalty off the table for these and other capital defendants could finally realize George Bush’s September 2001 promise to Congress and the nation that “justice will be done.”
The secretary of defense is the ultimate convening authority, and the death penalty lies in the purview of that authority. But the secretary of defense works at Biden’s direction and under his authority as commander in chief. Once the death penalty is no longer in place, then Biden must sidestep the military commissions and enable federal court judges to either fly to Guantanamo to administer the plea deals or do so via videoconference. Despite an initial reluctance by one or more detainees to plead, it is likely that the plea deal would prevail. For Pakistan-born, American-raised Majid Khan—who pleaded guilty in 2012 to various terrorism-related offenses and who is now serving as a government witness—resolution should take place immediately. When it comes to unraveling the particularly complex case of Ali Hamza Ahmad Suliman al-Bahlul, currently on appeal, a singular set of accommodations will be required, but even this case can and should be resolved. One possibility is that the DC Circuit or the convening authority could vacate his conviction or give him time served, removing him from the group of convicted detainees and placing him in the group of detainees to be transferred. And if the plea deals yet to be made result in sentences longer than time served, these detainees, along with those already sentenced, can serve the rest of their sentences overseas via arrangements made through special envoy negotiations.
The third category, the remaining 15 to 20 “forever detainees,” poses a more varied set of challenges. Most are middle-aged or older. Many are sick. Others are psychologically damaged. These remaining detainees include those whose torture at the hands of Americans has been well documented—among them two whose stories of torture have long been public, Mohammed al-Qahtani and Abu Zubaydah. These individuals can be released and returned to their countries of origin or a third country under supervised release. The reason they aren’t being tried or released is precisely because they were tortured, an impediment to any legal proceedings.
Further, there is the determination to keep the victims of torture silenced, as if more information about their torture at American hands would be intolerable to American authorities, despite the graphic descriptions of their treatment in memoirs, legal filings, and even the 2014 Senate report on the CIA’s detention and interrogation program. Al-Qahtani and Zubaydah could both be released and returned to Saudi Arabia, where they could participate in the well-established Saudi rehabilitation program for terrorists. Meanwhile, a few of the less high-profile detainees could be granted compassionate release, including 73-year-old Pakistani citizen Saifullah Paracha, Guantanamo’s oldest detainee. The rest, none of whom are tied directly to a terrorist attack, should be released with time served.
In order to accomplish all of this, Biden should issue a series of executive orders on day one.
A first executive order would announce that Guantanamo is closing, effective immediately. This would involve several organizational and administrative steps:
- The revocation of Trump’s Executive Order 13823, putting a halt to Guantanamo’s closure by Obama.
- The appointment of a single individual—a Gitmo closure czar—at the National Security Council level to oversee the interagency process of closing the prison in all of its aspects, from facilitating legal hiccups to negotiations with foreign partners about the transfer of detainees to their countries.
- The Office of the Special Envoy for Guantanamo Closure needs to be reopened and staffed with a group of diplomatic envoys. As the detainees in all three categories will need to be released to their home countries or a third country, each of them will require extensive arrangements setting the conditions of transfer. This office needs to be sufficiently resourced.
A second EO should address the legal proceedings:
- The military commissions process should be halted immediately. Despite numerous efforts to proceed, the commissions have made a mockery of justice. Judges have rotated in and out at an alarming rate, causing interminable delays. The government has spied on defense lawyers. Torture has made the production of evidence and testimony nearly impossible. In truth, there has been precious little forward motion since the first Military Commissions Act of 2006.
- The death penalty should be taken off the table.
- Federal judges should be tapped to preside over plea deals, charged as federal crimes, and military sentencing tribunals—a singular piece of the military commissions that could stay intact for this purpose—should be convened to sentence those few awaiting determination of their punishment.
A third EO—echoing Obama’s EO banning torture and declaring it to be illegal—should recognize the mistake of setting up Guantanamo in the first place.
- Biden should declare an end to indefinite detention, noting its deviation from time-honored judicial custom and from constitutional law.
- He should denounce the violations of law, policy, and morality that have been the signature reality of detention at Guantanamo for its 19 years of existence.
- He should recommend compassionate action toward each and every one of the detainees in custody, officially recognize the harm that was done to them, and signal that the United States has regained its trust in the processes that govern justice.
Shuttering Guantanamo, long overdue, offers the chance to bring closure to the 9/11 era as well. It’s time to free a system held hostage to the fear and politics of bygone days. It’s time to move forward, not by shadowboxing with the legacy of torture and perpetuating the fears of a country stuck in time but with the much-needed sense that justice can be served with judgment, confidence in the law—and yes, even compassion.
