When Joe Biden takes office next month, he will be the fourth U.S. president to oversee the notorious detention center at Guantanamo Bay. It is very likely there will be a fifth.
The first detainees arrived at the facility on Jan. 11, 2002, and the last in 2008. A total of 780 men have been held there, in a legal black hole outside the U.S. justice system, many of them subjected to torture during interrogation, many later proved to have minor or nonexistent links to terrorism. President George W. Bush said he wanted to close the facility in 2006, and eventually transferred 500 detainees out. Barack Obama campaigned on closing Guantanamo and issued an executive order to shut it down his first week in office, but failed to shutter the prison completely. Forty-one detainees were still there when he left office. Donald Trump vowed during his campaign in 2016 to load up Guantanamo with “bad dudes” and in 2018 issued an executive order reversing Obama’s earlier order and formally keeping the facility open, but he left Gitmo mostly untouched: One detainee was transferred out during his presidency, leaving 40. Those still detained range from low-level fighters to Khalid Sheikh Mohammed, the alleged mastermind of 9/11.
Biden has said repeatedly that he wants to close the detention center, which he describes as “an advertisement for creating terror,” and he remains committed to that position according to a source within the transition. But even if he makes this a top priority for his administration, the bureaucratic and legislative mess surrounding Guantanamo is likely to keep at least some detainees languishing in Cuba for years to come.
Biden’s options are limited without help from Congress. In 2015, Congress passed, and Obama signed, with objections, a National Defense Authorization Act—the all-important annual bill that sets the budget for the Pentagon—that included provisions barring the transfer of detainees from Guantanamo Bay to the United States. This transfer restriction has continued in subsequent NDAAs.
If Republicans retain control of the Senate, there’s little hope of overturning the restriction. (The late senator and former prisoner-of-war John McCain, who was often willing to work with Democrats on detainee issues, was a major loss on that front.) The idea of actually reopening Gitmo was championed in 2016, not only by Trump but by more “mainstream” Republicans like Marco Rubio. Even if Democrats win the narrowest possible Senate majority in next month’s Georgia runoffs, it could be tough. Under Obama, a number of key Democrats opposed transferring detainees to American prisons. In 2010, even Sen. Bernie Sanders voted against funding Obama’s efforts to closer the facility. As former Sen. Ben Nelson put it in 2009, “They’re not welcome in Nebraska. And Kansas can do what it wants, but that’d still be too close to Nebraska for me.”
To be clear, the idea that holding one of these detainees in a supermax prison or military brig on U.S. soil poses some threat to Americans is the most absurd sort of NIMBYism. Over the years, numerous terrorists, including shoe bomber Richard Reid, “underwear bomber” Umar Farouk Abdulmutallab, Boston Marathon bomber Dzhokhar Tsarnaev, and Orlando nightclub shooter Omar Mateen, have been tried and imprisoned in the United States with little controversy. Many of those remaining at Guantanamo are accused of comparatively minor crimes.
Most politicians are still reluctant to spend political capital on bringing perceived terrorists to the United States, no matter how securely imprisoned. (The transfer restriction was notably not among the several points of controversy in the recently passed NDAA.) Obama’s efforts to close Guantanamo were unpopular with the public throughout his term; arguments noting the cost of the facility—$13 million a year per prisoner, which even Trump called “crazy”—and its role as a recruitment tool for terrorist groups didn’t prove all that effective.
Given that Guantanamo has largely slipped out of the headlines in recent years, it’s difficult to assess whether the politics on this issue have shifted. Terrorism is a lower priority for American voters than it was even four years ago, which may make this less of a hot-button issue.
There are a few options Biden could explore if Congress won’t budge. The first and easiest action is to cancel Trump’s executive order and reestablish closing Guantanamo as official U.S. policy. The next is to continue transferring detainees to other countries’ custody. Five detainees have already been recommended for transfer to their home countries by the Obama-era Periodic Review Board. One of them, Muieen Adeen al Sattar, is a stateless Rohingya, which could complicate efforts to find a nation to resettle him, but a solution can probably be found.
Benjamin Farley, a lawyer for Guantanamo detainee Ammar al-Baluchi, suggests in a recent article for Just Security that three or four other detainees would probably have been recommended for transfer had the review process continued under Trump.
This would leave about 19 or 20 detainees who are currently being held as prisoners of war but have not been charged, put on trial, or recommended for transfer. Most of these people are already designated by the government as “low value,” meaning they were not particularly dangerous or high-ranking terrorists. Farley recommends that Biden could make more people eligible for transfer by giving new guidance to the review board. Currently the board is supposed to consider whether continued detention is necessary to “protect against a significant threat to the security of the United States,” but that still leaves a lot up for interpretation. He suggests a new guidance could make clear that “ ‘necessary’ means ‘unable to be accomplished without continued detention,’ ‘protect’ does not mean ‘prevent absolutely,’ and ‘significant threat’ means not just ‘some’ or ‘any threat’ but ‘a threat substantially greater than the ordinary threats posed by hostile individuals every day.’ ”
Under the new guidance, a detainee’s age and length of detention could also be considered: The oldest detainee, 73-year-old Saifullah Paracha, a Pakistani businessman accused of providing financial support to al-Qaida, has been at Guantanamo for 16 years. The review board denied him transfer in 2016 in part because of his “refusal to take responsibility for his involvement with al-Qaida”—involvement he denies.
Another complication to the transfer plan: Ten of those currently held in law-of-war detention come from Yemen, a war-torn country to which the Obama administration banned detainee transfers in 2015 over security concerns. Others come from Afghanistan and Libya. The Obama administration got around this problem by negotiating transfers to designated safe third countries such as Ireland, Bermuda, and Palau.
Military court proceedings may also stand in the way for some prisoners. Seven detainees have been charged, three have been proposed for trial, and two have been convicted by military commissions, the legal process set up in 2006 to try them. These commissions have been a costly disaster, beset by delays, defendant boycotts, and scandal. In 14 years, the process has garnered just eight convictions, four of which have been overturned on appeal.
Authorities have been reluctant to try these men in civilian courts, particularly since some of the evidence against them was obtained via torture. One increasingly popular solution would involve negotiating plea deals with them in civilian courts, something that could probably be done without legislative action. Some detainees might take such a deal in order to escape the legal purgatory of Guantanamo, particularly if authorities took the death penalty or life sentences off the table.
This leaves the question of where they would serve their sentences. “There’s at least an argument that once they’re in the custody of the civilian justice system, perhaps the transfer restrictions [to the United States] would not apply,” says Steve Vladeck, a professor of law at the University of Texas who has represented Guantanamo detainees in the past. However, he notes, if the detainees are not willing to accept plea deals, trying them involuntarily in civilian courts would be a lot more complicated. If the detainees can’t be brought to the U.S. for trial, the law is unclear on whether they could receive a jury trial by videoconference.
But ultimately, Vladeck believes strategies like these will not close the facility for good. “There are lots of ways to whittle down the population,” he says. “Without Congress, there are no ways to get rid of it categorically.” Farley, who is on the optimistic end, estimates that the facility’s population could be reduced by 75 percent without Congress. That would still leave 10 detainees.
It’s possible that will be enough to shift the politics. Biden’s most likely course of action will be to pick up where the Obama team left off, by reducing the population as much as possible through transfers while lobbying Congress to help with the rest.
“Our theory was to try to get the number so low that Congress would recognize that it’s so expensive for such a small number of people that it would release the transfer restrictions,” says Neil Eggleston, who served as White House counsel during the Obama administration’s final years.
Many advocates of closing Guantanamo have charged that Obama could have done more, by acting earlier and more decisively to shut down the facility and make a more forceful case for it on Capitol Hill, but domestic legislative priorities took precedence. Obama himself seemed to acknowledge this in 2016 when, in response to a question from a seventh grader in Cleveland about what he would have done differently if he could go back to his first term, he replied, “I would have closed Guantanamo on the first day. I thought that we had enough consensus there that we could do it in a more deliberate fashion, but the politics of it got tough and people got scared by the rhetoric around it. Once that set in, then the path of least resistance was just to leave it open.”
That dynamic is only more entrenched today. If Obama, who made Guantanamo one of his signature issues, wouldn’t expend the political capital needed to shut it down, it’s hard to imagine that Biden will accomplish it at a time when many Americans seem to have forgotten about the prison entirely.