The San Juan Daily Star
Biden can close the legal black hole at Guantánamo
By The Editorial Board
Last week, Said bin Brahim bin Umran Bakush was released from detention at Guantánamo Bay, Cuba, and returned to Algeria, his home country. Suspected of being a low-level fighter for al-Qaida, at age 52 he was in his 21st year of detention in the prison, had no charges filed against him and stopped speaking to lawyers about five years ago. Bakush’s release leaves 30 men, of the 780 held there over the years since 2002, still imprisoned at the U.S. naval base whose name has become synonymous with American shame.
President Joe Biden said at the outset of his administration that he would seek to have the detention center closed, and he directed the Defense Department to study how best to do so. But at the rate these cases are moving, resolving them could take several more years. Biden wisely avoided the kind of highly public pledges to close down the prison that President Barack Obama made and could not keep. But to achieve the goal of finally ending the extrajudicial detention of prisoners at Guantánamo — and its disgraceful violations of fundamental human rights and abandonment of the right to due process — requires more of Biden.
Clearing out the remaining prisoners requires cutting through a tangle of laws, policies, procedures and bureaucratic secrecy. These are not simple tasks, but they are well within the power of the White House to accomplish if the process is given a far higher priority. Biden can use his authority to order the departments of Defense, Justice and State; the intelligence agencies; and other agencies involved to coordinate their efforts and direct their resources to make it happen, as quickly as possible.
The moral imperative and the ethical case for doing so has only gotten stronger with time. As long as there are people held in detention at Guantánamo, America’s condemnations of brutal detention centers in China and Syria will ring hollow. And there is a particular cruelty inflicted by time. On April 21, a senior official of the International Committee of the Red Cross issued a rare public call for the U.S. military to provide better care for prisoners, because they are “experiencing the symptoms of accelerated aging worsened by the cumulative effect of their experiences and years spent in detention.”
The window for this administration to act may be closing. As the 2024 presidential campaign season begins, Republicans are more likely to label any efforts to close Guantánamo as soft on terrorism. Victory by Donald Trump or a like-minded candidate could well end any such efforts, as Trump did when he was in the White House.
There are two concrete and urgent tasks before Biden’s government: The first is to find countries willing to take 16 men who, like Bakush, are deemed to pose no terror threat and have been cleared to leave but have not, usually because their home countries are in chaos and no other country has been found to take them.
The second is to clarify the “policy principles” that would open the way for plea bargains for those cases in which convictions are no longer possible. There are 11 men who still have active cases before special military commissions, including five charged with having roles in the 9/11 attacks. None of them can be convicted, because they were subjected to torture and other maltreatment in detention. With three other detainees, the government simply needs to decide what it wants to do.
The president has full authority to clear these hurdles and either repatriate the remaining prisoners or get them to a plea bargain. He has already appointed a special envoy for Guantánamo’s closing, Tina Kaidanow; Biden needs to ensure that the task has the highest priority.
The Biden administration has also made some efforts to reach plea agreements with the remaining prisoners. But the plea bargain talks with the five prisoners accused in connection with 9/11 — including Khalid Shaikh Mohammed, who is accused of conceiving the plot — are bogged down. Since the plea talks opened more than a year ago, the military judge has canceled every scheduled session while the administration evaluates its policy principles guiding the terms under which the men would continue to be held at Guantánamo once they accept a plea bargain. Those terms include clearly defined rights to health care, lawyer visits and other conditions. Rather than allowing federal agencies to continue to discuss the policy principles, Biden could direct them to reach a consensus, speeding up the resolution of the remaining cases.
Congress imposed a ban on allowing any of the Guantánamo detainees to ever enter U.S. territory, whether for trial, detention or even medical treatment. So there is virtually no other place to imprison those who do reach plea bargains, and while their cases drag on and the prisoners’ health deteriorates, teams of doctors and surgeons must regularly be flown out to the island to treat them.
If Congress lifted the ban, these prisoners could serve out their sentences after a plea bargain in a maximum-security prison in the United States. As long as the ban is in place, the only option is to keep the detainees on Guantánamo at a cost of $13 million per man per year, multiples of what it would cost to hold them on U.S. soil. Once these cases are at last resolved, Guantánamo as a legal black hole would cease to exist.
The ability to function outside the normal constraints of law and human rights is why this legal black hole was devised in the first place. The prison was established after the 9/11 attacks as a secret detention camp for especially dangerous prisoners, and the U.S. government at first deemed that it operated outside U.S. legal jurisdiction. This gave the CIA and other agencies the legal cover to conduct “enhanced interrogations” that amounted to torture and to subject prisoners to cruel, inhumane and degrading treatment.
“At the heart of the commissions’ problems is their original sin: torture,” Brig. Gen. John Baker of the U.S. Marine Corps, who was chief defense counsel at Guantánamo for 6 1/2 years before his retirement in December 2021, testified before the Senate Judiciary Committee.
The time to expect justice through the legal process has passed. As Baker testified, “The best that can be hoped for at this point, more than 20 years after the crimes were committed, is to bring this sordid chapter of American history to an end. And that end can only come through a negotiated resolution of the cases.”
Biden has the power to help reach that end and an obligation to do so.