When news of Joe Biden’s election victory crossed the Florida Straits and reached Guantánamo Bay, it gave at least some of the 40 remaining inmates a tentative hope that their long purgatory might finally be nearing an end.
“I think it’s OK for me to be happy about the result. But at the same time, it’s not like, day one, Biden is going to say ‘let’s release Khalid’,” Khalid Qassim, a Yemeni arrested in Afghanistan in 2001, said in a statement given by phone to his lawyer.
Qassim has denied any link with terrorism and has withdrawn earlier confessions of links to al-Qaida, which he says were made under torture. He insists he was in Afghanistan looking for work. He has been held at Guantánamo for nearly 19 years without being charged with a crime.
“A lot of the detainees are feeling better,” he said. “It’s a relief, you know? We know nothing will happen on day one, but at least our cases won’t be stagnant, we won’t be totally forgotten.”
How far the Biden administration will go to extricate Qassim and his fellow inmates from the judicial black hole established in Guantánamo in 2002 will say a lot about the president-elect’s determination to break with the past, and with the counter-terrorism response to the 9/11 attacks, that has shaped US foreign and security policy ever since.
So far, Biden has said very little about his plans for Guantánamo, other than restating his intention to close it. His campaign put out a statement in June saying its existence “undermines American national security by fuelling terrorist recruitment and is at odds with our values as a country”.
“The president-elect stands by that,” a transition official said.
However, the incoming administration will start work at the height of a pandemic, with an accompanying economic crisis and a deeply divided nation. Closing Guantánamo will be a complex task and will accrue little political credit. The transition team is weighing tactics for winding up the detention centre established almost 19 years ago at the naval base on the US toehold in Cuba, but has revealed little of its deliberations.
Former officials say the Biden camp has learned the lesson of the Obama administration, which made big promises – issuing an executive order on closure on its second day – but then fell short. Over eight years, it managed to transfer about 200 inmates, negotiating deals with countries around the world to take them, but the effort was hindered by congressional resistance and foot-dragging in the Pentagon.
Before 2009, closing Guantánamo was a bipartisan matter. George W Bush admitted it was a national liability and transferred more than 500 inmates, but when Obama took office and named closure as a priority it became a Republican target, without full Democratic support.
Donald Trump ended the transfer policy from Guantánamo and vowed to “load it up with some bad dudes”, though he did no such thing. The prison population actually decreased by one on his watch. But that still leaves 40 men stuck in Caribbean limbo, at an annual cost of $13m per prisoner. Only nine have been charged. Others, such as Qassim, were swept up on the battlefield and have little or no connection to terrorist attacks on the US, some handed over for the bounty the US was offering.
Five prisoners have actually been cleared for transfer by the Periodic Review Board (PRB), but have been stuck in the camp for years because of Trump’s policy.
“For four years, Guantánamo policy has essentially been set by a Trump tweet, posted before he was even in office, saying there should be no more releases. The first thing Joe Biden should do is resume the transfer process,” said Maya Foa, director of the advocacy group Reprieve, which provides Qassim’s legal representation.
The five already cleared could be transferred in the early stages of a Biden presidency, along with four or five more inmates who had been expected to win approval from the PRB before the board was mothballed by the Trump administration.
A special envoy and a State Department office dedicated to closing Guantánamo – both eliminated by Trump – would have to be reconstituted and empowered to negotiate with countries on resettling former inmates, some of whom – Yemenis such as Qassim for example – are unable to return to home countries.
Benjamin Farley, a Guantánamo defence lawyer who worked in the State Department office negotiating transfers in the Obama administration, argues that up to 30 of the prisoners could be repatriated or resettled by reviving the mechanisms that Trump dismantled, without needing permission from Congress.
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Part of the process would be reframing the criteria used by the PRB in assessing whether continued detention is “necessary to protect against a significant threat to the security of the US”.
At present the PRB operates like a parole board, looking for signs of contrition. Instead, Farley argues, it should weigh each prisoner’s likely future threat in terms of their age, mental and physical state and the circumstances in the country of resettlement.
The process would be accelerated by a cooperative Department of Defense, said Alka Pradhan, another Guantánamo defence lawyer.
She said that part of the problem was the Pentagon’s aversion, presumably for legal liability reasons, to admitting that some prisoners should never have been at Guantánamo in the first place.
“One of the issues was that the Department of Defense would only authorise a short paragraph of information for the State Department to transmit to third countries, and it would literally be the name of the person, his country of origin and how long he had been at Guantánamo. There was virtually no other information,” Pradhan said. So the would-be host nation would search the name online and turn up unverified and often fabricated allegations about the inmate.
The hardest part of any effort to close Guantánamo would be the 10-12 prisoners who are either facing military commission hearings or are considered of such security importance to the US that it is highly unlikely any PRB would release them.
The military commission system has been an abject failure in delivering justice. The five defendants accused of playing a role in the 9/11 attacks, including their alleged mastermind, Khalid Sheikh Mohammed, are still in pre-trial hearings more than 12 years after being charged. The process is primarily stuck on the admissibility of testimony the defendants provided after being tortured at CIA black sites. The history of torture would also overshadow any attempt to try them in federal courts.
In those cases, lawyers and human rights advocates argue the US should offer plea deals, possibly negotiated by federal judges flown into the base, that would clear the way for release for time served or life sentences in a handful of cases.
For those sentences to be served in the US, a deal would have to be struck with Congress to reverse a measure banning any prisoner transfers from Guantánamo. Or another country would have to be persuaded to take custody. And there is no guarantee that all the defendants would accept the deals on offer.
Complete closure of Guantánamo would need a substantial investment of political capital, on Capitol Hill and in foreign capitals, at a time when there will be many other pressing issues begging for attention.
Karen Greenberg, director of the Center on National Security at Fordham University School of Law, still believes that Biden’s team can finish the job.
“I think there’s more than a 50-50 chance,” she said. “You need to understand that Guantánamo as a symbol has to be taken out of the equation of what’s associated with the United States … these guys understand that.”
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