Four months after the Sept. 11, 2001, attacks on New York and the Pentagon, an Air Force C-141 Starlifter dropped out of the sky and landed at the U.S. Navy base in Guantanamo Bay, Cuba.
Inside the massive cargo jet were 20 shackled Afghan war detainees, blindfolded and clad in orange jumpsuits. They were the first of almost 800 men who had been captured on battlefields in Afghanistan and brought to the austere detention center.
The Pentagon considered them “unlawful combatants” rather than enemy soldiers who would be shielded under the protective umbrella of the Geneva Convention.
“These are very bad people and we cannot bring them into the U.S. criminal justice system,” said a retired CIA officer who still occasionally works with the spy agency. “They’re unrepentant. They’re truly evil people.”
President Barack Obama vowed to close down Guantanamo and failed, repeatedly blocked by Congress over his two terms in office. President Trump vowed to “load it” — Guantanamo — “with some bad dudes,” and failed as well.
Now it’s presumptive President-elect Joseph R. Biden’s problem.
From a peak of around 780 during the George W. Bush administration, the roll of prisoners has steadily declined, with many of the small remnant at the detainee site on the tip of the island of Cuba among the hardest of the hard cases for the military legal system to deal with. Now there are 40 men who remain in legal limbo inside the military-operated prison.
The prison’s very existence is a PR problem for the U.S. around the world, and the legal stalemate over many of the remaining detainees shows no signs of easing. Five suspects accused of helping carry out the Sept. 11, 2001, attacks are still awaiting trial in Guantanamo, along with a suspect from the bombing of the USS Cole that was carried out 20 years ago last month.
But the inability of both Democratic and Republican presidents to solve the Guantanamo riddle reflects just how bad the alternatives are. Congress must approve the transfer of any Guantanamo detainees to the U.S., a bar that continually frustrated Mr. Obama’s efforts to close the site.
And Guantanamo represents an expensive headache as well: The cost of keeping Guantanamo open has been estimated at $13 million per prisoner per year.
Betting on Biden
Advocates for the detainees say they are quietly optimistic that Mr. Biden might be able to do what his former boss in the White House couldn’t accomplish, finally close the gates at Guantanamo and bring the remaining detainees to the U.S. mainland.
“Indefinite detention of 40 men, most of whom have never even been charged with a crime, is a human rights atrocity,” said Daphne Eviatar, director of the Security With Human Rights program at Amnesty International USA. “It’s also a costly leftover policy from previous administrations that serves no useful purpose and certainly does nothing to help keep the U.S. safe.”
Although the topic was mostly ignored during the presidential campaign, Mr. Biden has indicated in the past he favors closing down Guantanamo.
“I’d be surprised if President Biden didn’t close it,” Ms. Eviatar said. “There’s going to be a lot of pressure on him to do it.”
Mr. Biden did not make an issue of the prison this year, but his campaign told The New York Times in a statement this summer that the former vice president “continues to support closing the detention center.”
Guantanamo “undermines American national security by fueling terrorist recruitment and is at odds with our values as a country,” the campaign said.
The detention center still stokes anti-U.S. feeling around the world and is a topic often raised by authoritarian regimes when the U.S. urges them to abide by their human rights obligations, she said.
“I still get questions from our chapters all over the world about Guantanamo and why is it still open,” Ms. Eviatar said. “Young people who were not even born when it happened are learning about it [and] they’re horrified.”
Of the multinational load of first detainees swept up in the early days of the global war on terrorism, the Bush administration released about 550 prisoners, mostly through repatriation to Pakistan, Afghanistan and Saudi Arabia. President Obama released about 200 through other repatriation programs.
Despite Mr. Trump’s campaign talk of reviving Guantanamo as a terrorist holding site, the population of prisoners at Guantanamo over the past four years fell by exactly one, from 41 to 40.
The Trump administration did prevent the freeing of five detainees who were clear for release by the Obama administration. Of the remaining detainees, according to the news website Middle East Eye, two-thirds have been deemed “forever prisoners” held without charge or scheduled trial in indefinite detention.
Mr. Obama repeatedly pledged to shut down the detention center but met significant opposition after acknowledging that some of the prisoners would be sent to maximum-security facilities in the United States. He and Mr. Biden both accused Congress of thwarting the closure plans.
But setting the Guantanamo detainees free is also not an option.
The retired CIA officer said he was concerned that some of the detainees would resume their anti-U.S. activities if they are released.
“These people need to stay there. Guantanamo is a good solution for an ugly problem,” he said. “They are guilty of heinous crimes and there is no other place for them to go.”
Officials with the Council on American-Islamic Relations (CAIR) said they would like Mr. Biden to find a solution to the Guantanamo problem within the first 100 days of his administration. It would entail clearing and removing prisoners who deserve to be released or trying those with credible criminal charges against them.
“Some of these prisoners have been in Guantanamo for nearly 20 years — which is a life sentence — without having a judicial proceeding outside of a military court,” said Robert McCaw, CAIR’s government affairs director.
“Some of these people should be in prison and some of these people should be released — but they all need their day in court,” Mr. McCaw said.
Back to the battlefield
Those who back keeping the detention center open are concerned about the recidivism rate. The director of national intelligence is required to determine how many detainees resume terrorist activities once released.
“Some detainees currently at [Guantanamo] will seek to re-engage in terrorist or insurgent activities after they are transferred,” the July 2018 report states. “Some detainees who are determined to reengage will do so regardless of any transfer conditions.”
The report also stated that former detainees at Guantanamo “routinely communicate” with each other after being transferred. The reasons range from the mundane — such as reminiscing about shared experiences — to the nefarious, such as planning terrorist operations.
“Most of the men who have been there have been there for more than 15 years. They don’t represent a danger,” Ms. Eviatar said.
She said it was clear the Obama administration could have done a better job selling the detention center closure to the public.
“It’s not a political winner,” for Mr. Biden, Ms. Eviatar acknowledged. “But I also think it would be a big political loser if it was still open and holding people indefinitely.”
Mr. McCaw said he was confident any of the detainees at Guantanamo could get a fair hearing in a U.S. civilian court room.
“I trust the U.S. prison system’s ability to house high-risk inmates,” he said. “These people need their day in court or they need to be released. Doing so provides closure — not only for them but any potential victims.”