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Only a few months ago, the wretched situation at Guantánamo Bay was back in the news. Newly elected President Joe Biden had said he supported the prison’s closure. A couple of attention-getting movies and news reports had raised questions about the utility of continuing to detain men whose intelligence value was exhausted years ago and whose terror networks no longer exist—if they ever existed—in an offshore prison at a cost of $13 million per detainee, annually.

Then, just last month, the Periodic Review Board, or PRB, the government entity charged with reviewing detainees’ cases and making determinations of whether they pose a threat to the United States, approved three detainees for transfer. That step suggested that efforts to transfer detainees, a key step toward closing the prison, could be gaining momentum. (The Trump administration cleared only one detainee transfer.)  Significantly, it came only weeks after Biden’s April announcement that he would withdraw from Afghanistan before the 20th anniversary of the 9/11 attacks,  giving fodder to arguments that the United States can no longer justify holding “law of war” detainees once hostilities are over. 

Unfortunately, it is not at all clear that this will be the case.

Cleared But Still Held

Now, no serious person argues for the release of the men accused of plotting the September 11, 2001 attacks, which took some 3,000 lives and caused immeasurable pain and suffering for the survivors and family members left behind. For justice to be done, though, these men should be brought to the United States to stand trial in a federal court, where more than 660 terrorists have been successfully tried and convicted—not tried in a misguided Pentagon-run military tribunal that seems more committed to deep-sixing classifying detainees’ memories of torture than pursuing justice for the victims of 9/11. But the sad, shameful reality is that, nearly 20 years after its opening, Guantánamo remains the home of more than two dozen men who are either cleared for release, or have never been charged, and are unlikely ever to be.

Men like Latif Nasir, who has languished in Guantánamo for nearly 19 years despite having been cleared for release in 2016. He was accused of being an associate of Osama bin Laden, of having trained at Al Qaeda camps and being a commander of a group of fighters, according to media reports. His attorneys, however, say he was sold to U.S. authorities for a bounty by the US-backed Northern Alliance, and that evidence against him should be discredited because it was obtained through torture.

And how can there be any question about the release of Ahmad Rabbani, a Karachi taxi driver mistaken for a suspected terrorist, who continues to be held, 18 years after his capture, despite the detention and subsequent release of the man he was mistaken for. Surely he should be transferred home to meet the son he has never seen in person. What security need, what intelligence requirement, is met by continuing to detain Rabbani, who has been so worn down that he no longer responds to courtesies like “Good morning?” For him, “there is no morning or evening, there is only despair,”he wrote in the Los Angeles Times three years ago.

Having spent some time providing support to the PRB process during the Obama administration myself, I know that determinations on whether an individual is—or ever was—a threat to the United States are not made lightly, and I cannot fathom why Rabbani should be held longer than the congressionally-mandated 30 day notification of Congress before being transferred home to Morocco. 

Calls for closure are coming from many quarters. They include defense attorneys, former special envoys on the Guantánamo question, civil rights groups, 26 Democratic senators and, not surprisingly, former detainees. In April, I made my own plea as a former CIA officer. 

Not much has changed. On Monday, Secretary of State Antony Blinken said the administration is actively considering restaffing the special envoy position, but expressed concern that the office have sufficient staff and resources that attention can be devoted to the issue on a full-time basis.

As seen on TV

There has been a renewed media focus on Guantánamo over the past 18 months, particularly via several high-profile movies, including The Mauritanian and The Report, and the publicized testimony of the two psychologists considered to be the architects of the CIA’s torture program. Those have at least sparked some public awareness of an issue many people had seemingly forgotten about, amplifying calls for its closure. 

President Biden may think there will never be a better time to move forward with plans to close the Guantánamo facility: He has directed aides to begin a review of Guantánamo and possible options for its closure and the transfer of detainees.But public opinion is against it: A 2016 CNN/ORC poll found that 47 percent of respondents, and 83 percent of respondents identifying as Republican, opposed closure. That’s reflected in Congress, where unified GoP resistance means that only a few Democrats are needed to defeat a Biden initiative.

In late May, Senator Lankford (R-OK) and several other Republican senators wrote Biden expressing concern over the PRB’s recommending the release of three detainees who had been held for nearly 20 years—the first recommendation for transfer in several years. Among them are the aging Saifullah Paracha, who now suffers from several serious health conditions and was accused, among other things, holding money for Al Qaeda terrorists—claims later called into question because they were refuted by self-identified Al Qaeda members, who said Paracha had no idea about the identity of the individuals he was speaking to. In fact, Paracha's son, also linked to these allegations, was recently released from prison in the United States after significant questions were raised about the veracity of the evidence used to convict him, which the judge said undermined the case  for a new trial.  Lankford and his colleagues still argue against transfer on national security grounds, perhaps unaware of the problematic evidence used to detain these men and many others, and of the thoroughness of the deliberations of the PRB.

The Road to Perdition

Republican opposition is rooted in the belief that those detained in Guantánamo are “the worst of the worst,” as first characterized in 2006 by then-Defense Secretary Donald Rumsfeld, and later by Vice President Cheney in 2009, when he said the only alternative to Guantánamo was killing terror suspects. Many Republicans in Congress applauded when former President Donald Trump stated in his 2018 State of the Union address his plan to keep Guantánamo open to house future terror suspects. (Two years before, Republican debate-goers applauded when Trump announced during a campaign debate that he would bring back “worse than waterboarding.”) Opposition within the GOP to closing Guantánamo, and to acknowledging that the treatment of some of the men detained there falls far short of the standards of U.S. law, runs very deep.

Beyond partisan concerns, legislation exists to preclude bringing any Guantánamo detainees to the United States. The National Defense Authorization Act contains language banning such a move, and passes with bipartisan support every year. Biden will have to either convince Congress not to include such a provision this year—which will immediately be rejected by Republicans—or persuade congressional Democrats to pursue separate legislation that would surely give Republicans another wedge issue to bludgeon them with. Given the aversion of at least two Democratic Senators, namely Joe Manchin (WV) and Kyrsten Sinema (AZ), to legislation that is not bipartisan, the outlook for a purely Democratic bill is dim. 

And, unfortunately, there are concerning signals coming from Biden’s Department of Justice as well.

A man detained without charge in Guantánamo since 2002, Abdul Razak Ali, has sued the government for due process rights. A lower court ruled that Guantánamo detainees do not have these rights, as Guantánamo is not located in the United States and not subject to Constitutional provisions, and the case is now with the Supreme Court. The Biden DOJ, somewhat surprisingly given Biden’s position on Guantánamo, has embraced the position that if due process rights apply to detainees—and that remains to be seen—the due process clause has already been satisfied.  That an administration opposed to the idea of keeping open Guantánamo, a virtual Devil’s Island that has come to symbolize our post-9/11 dalliance with authoritarianism, could argue that a man held for 19 years has no right to see the evidence against him, is deeply concerning.

The Way Out

If the Biden Administration is serious about closure, it needs to pursue several courses of action. It must take its case to the American public, particularly in states where elected officials are on the fence. It needs to explain the PRB process, but more importantly, it must be forthcoming about the often dubious evidence that led to detention in the first place—for example, explaining that some of these men are in Guantánamo because they were sold to U.S. forces for a bounty payoff—not because of any body of evidence against them. (In fact, only four percent of Guantánamo detainees ever fought U.S. forces.) It must denounce the notion that the United States should be in the business of holding individuals who have never acted to harm the United States simply because they are accused of terrorism in another country—as is the case with at least one detainee, Mohamed Abdul Malik. And it should make public, when possible, the kinds of security assurances and restrictions placed on transferred detainees, to assuage anxiety over potential recidivism. It is especially important to note that, as of 2018, among the detainees released under President Obama, whose administration implemented the PRB process, the percentage of former detainees who are confirmed recidivists is about 4.8 percent, compared to 21.2 percent of those released under President Bush, who had no such review process in place.

Additionally, Biden needs to fill the Special Envoy for Guantánamo Closure positions at the departments of State and Defense. These were vacant throughout the Trump administration, following  his Executive Order to keep the facility open and his opposition to the transfer of even cleared detainees to other countries. These positions are crucial to securing commitments from third countries to host cleared detainees, negotiating the terms of transfer—including security assurances when necessary—and ensuring these countries live up to their commitments after transfer. 

I would add that these positions should also be charged with ensuring medical care for detainees released with health conditions that occurred or were exacerbated by their detention in Guantánamo, where medical care is hardly up to the standards Americans would expect. (Case in point: in early 2019 a judge in the 9/11 case had to be medevacked from Guantánamo when he suffered a detached retina; if U.S. military officers cannot get adequate medical care at Guantánamo, what kind of care can detainees expect?).  

Then there’s the sad and disturbing case of Lufti bin Ali, who was transferred to Kazakhstan in 2014. Bin Ali suffered from heart issues and other ailments, and was denied medical attention for his heart issues in Kazakhstan. He traveled to Mauritania, but was unable to pay for the medical care he needed, and died alone, never reunited with his family.

The ability of the Biden administration to finally close Guantánamo and end this ugly chapter of American history may ultimately come down to political calculus: Will the president choose to expend precious political capital to achieve this goal?

Guantánamo has been open for nearly 20 years, and once the current round of limited media attention to the prison abates—and it will—people will once again forget about the men who remain there. With a divided country and a truculent Senate, will Biden choose to devote attention to an issue that the country will have forgotten about by 2022?

Biden is the fourth president to contend with Guantánamo. He says he is committed to restoring American values, and he understands the damage Guantánamo and the human rights abuses tied to it have done to America’s reputation. The next president is unlikely to care as much, especially if public opinion is ambivalent. Unfortunately, if closure does not happen under the Biden Administration, it will probably never happen. 

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