A Path for Renewing Guantanamo Closure

With the ballots cast and counted, Joseph R. Biden, Jr. is president-elect of the United States. He must look forward to assembling his team, to inauguration, and to beginning the work of “building back better.” Although closing the 20-year-old detention facility at Guantanamo Bay, Cuba (GTMO) may not be a marquee issue among the many significant challenges Biden will face as president of the United States, it is a prerequisite for both restoring America’s global leadership by “salvag[ing] our reputation, rebuild[ing] confidence in our leadership” and for ending the so-called Forever Wars.

Closing GTMO is long overdue. As President George W. Bush recognized nearly 15 years ago, GTMO is “a propaganda tool for our enemies and a distraction for our allies.” Indeed, GTMO’s continued operation has been a drag on U.S. efforts to promote human rights and law-of-war compliance abroad. It also has proven to be a significant and continuing impediment to American counterterrorism efforts, most recently and prominently in negotiations with the United Kingdom over the disposition of the two surviving ISIS “Beatles.”

President Barack Obama understood the imperative of closing GTMO, repeatedly championed it, and made substantial progress toward that goal. His administration established a rigorous policy process to scrutinize each detainee and each proposed detainee transfer. But those efforts were stymied in part by the sudden and inexplicable transformation of GTMO closure into a partisan political issue after his inauguration. And they were dogged by specious claims of risk that reflected, without proper attribution, mistakes made during the Bush administration’s transfer of some 530 GTMO detainees. In fact, by the end of his administration, Obama had transferred 196 men from GTMO while improving the security of those transfers by a factor of five over the Bush administration’s efforts.

Today, closing the detention facility at Guantanamo Bay requires the United States to transfer just 40 men. Biden’s administration can safely complete that task with only moderate political, policy, and fiscal investment. Several of the steps the Biden administration should take to close GTMO are familiar—in fact, many of them were communicated to both the Trump and Biden campaigns before the election. Indeed, the reality is that Biden’s administration can accomplish 75 percent of the closure job simply by restoring, with slight modification, the successful GTMO closure policy process developed during the Obama administration. To finish the remaining 25 percent of the project, however, Biden will likely need the historically elusive support of Congress.

And Congress should aid the president-elect in closing the detention facility at Guantanamo Bay because doing so is both the right and fiscally responsible thing to do. Congress should support the responsible closure of GTMO because it will improve American security while restoring American leadership. And Congress should support the responsible closure of GTMO because it will help achieve finality and a long-sought measure of justice for the 9/11 attacks and the U.S.S. Cole bombing, among other terrorist acts.

Current Status

The 40 men left in U.S. custody at GTMO, at a cost of $13 million per detainee per year, fall into three rough categories:

Approved (or likely to be approved) for transfer: Nine (possibly 10).

  • Five GTMO detainees are currently approved for transfer. Two of those detainees—Abdul Latif Nasser and Sufyian Barhoumi—could easily have been repatriated to Morocco and Algeria, respectively, in February 2017 had the Trump administration not abandoned diplomatic arrangements already made.
  • Three (possibly four) GTMO detainees would likely have been approved for transfer by the Periodic Review Board (PRB) but for political interference during the Trump administration. Although PRB decisions are normally published approximately 30 days after the board meets—and although the Review Committee “shall conduct a review” if the PRB is unable to reach a consensus decision—Omar Muhammad Ali al-Rammah’s has been waiting more than three-and-a-half years for his last PRB decision; Moath Hamza Ahmed al-Alwi has been waiting two-and-a-half years; and Said Salih Said Nashir has been waiting nearly a year. Additionally, Haroon al Afghani’s decision is nearly two months overdue, potentially indicating that the PRB may have approved his transfer but for political interference.
  • One additional detainee, Uthman Abd al-Rahim Muhammad Uthman, is likely to be approved for transfer in the near future. The PRB’s file-review process recently recommended that he receive an additional full review hearing. Historically, when the PRB’s file-review mechanism recommends an additional hearing, the ensuring review results in transfer approval (or likely approval) 56 percent of the time.

Military commissions proceedings: 12.

  • Seven detainees are currently undergoing pre-trial proceedings before three separate GTMO military commissions: the 9/11 trial, the U.S.S. Cole trial, and the Hadi al-Iraqi (or Nashwan al-Tamir) trial. Six of those men face capital charges; all seven are victims of U.S.-government-sponsored torture. And, although each was arraigned between six and nine years ago, none have yet heard opening arguments, or seen members selected and empaneled. Indeed, the government has yet to produce fundamental discovery like the Senate Select Committee on Intelligence’s Report on Rendition, Detention, and Interrogation.
  • The Office of the Chief Prosecutor has repeatedly tried and failed to charge three additional detainees for the 2002 Bali bombings.
  • Majid Khan pled guilty and began cooperating with the government more than eight-and-a-half years ago. He is finally scheduled to undergo sentencing in May 2021.
  • Ali Hamza al Bahlul, whose sole remaining conviction—for standalone conspiracy—is before the D.C. Circuit on another petition for en banc review, is serving a sentence of uncertain duration.

Continuing law-of-war detention: 19 (or 18).

  • Nineteen (or 18, depending on the outcome of al Afghani’s PRB) men who have been detained for between 12 and nearly 19 years are neither approved for transfer nor face a suggestion of prosecution before a military commission.
  • Several of them are victims of the U.S. government’s Rendition, Detention, and Interrogation program, including at least: Abu Zubaydah, Abu Faraj al Libbi, Muhammad Rahim, and Guleed Dourad.
  • Approximately 15 of them are already described as “low value” by the U.S. government, suggesting that detention at cost of $13 million per year some 15 or more years since capture is impractical at best.
  • Among these low-value detainees is Mohammad Mani Ahmad al-Qahtani, one of the alleged “twentieth hijackers,” whose torture while in Department of Defense custody led then Convening Authority to reject military commission prosecutors’ attempt to try him as a 9/11 co-conspirator; a federal court recently ordered the United States first ever Mixed Medical Commission to review whether he is too mentally ill to be detained as a law-of-war detainee.

Although historically unusual and possibly unconstitutional, existing federal law imposes certain constraints on the transfer of the GTMO detainees described above. It limits the transfer of GTMO detainees subject to (1) court order or (2) advance Congressional notification that, inter alia, certifies the receiving government “has taken or agreed to take action that substantially mitigates any risk the individual could attempt to reengage in terrorist activity or otherwise threaten the United States or its allies or interests.” Existing federal law also prohibits the transfer of any of these men to the United States for any purpose, including trial or medical care—a prohibition that may well violate the United States’ international obligations. And it prohibits the transfer of any GTMO detainees to Libya, Somalia, Syria, or Yemen.

Reviving the Closure Process

By reviving, with slight modifications, the Obama administration’s GTMO detainee transfer policy process, Biden could make relatively rapid progress toward closing the detention facility. Eventually, revival and slight modification of the Obama-era GTMO detainee transfer process could allow Biden to transfer as many as 75 percent of the 40 detainees who remain in U.S. custody there even with the current transfer limitations in federal law.

Biden has the authority to direct the disposition of all the detainees at GTMO irrespective of the three categories described above. Nevertheless, building on the Obama administration’s efforts and adhering to those categories will help the Biden administration triage the GTMO closure problem set. It will allow the Biden administration to build on the successes and lessons learned from the Obama administration’s GTMO closure efforts. And it will ensure that Biden administration transfers demonstrate a similar marked improvement in the rate of former GTMO detainees who are confirmed or suspected of “reengagement,” as compared to Bush-era transfers, as those of the Obama administration.

Biden should also improve upon the Obama administration’s GTMO closure policy process to facilitate the safe and effective closure of the detention facility. By issuing guidance interpreting the PRB’s standard of review, Biden can gradually reduce the population of detainees in the continuing law-of-war detention category while ensuring that detainees who pose a bona fide significant, continuing threat to U.S. security are transferred last, following the necessarily intensive diplomatic engagement required to yield the most appropriate post-transfer security and humane-treatment guarantees.

This approach of reviving and slightly modifying the Obama-era GTMO detainee transfer process will best promote U.S. security interests while making substantial progress toward closing the detention facility. It will also avoid the time, policy, and political costs associated with creating a new process from scratch.

To reinvigorate the GTMO closure policy process, Biden should first lay the policy groundwork for GTMO closure by:

  • rescinding Executive Order 13823 to reestablish GTMO closure as the official policy of the United States, which is necessary to direct the bureaucracy and arm U.S. diplomats to that end;
  • assigning responsibility for overseeing the closure policy to a senior member of his administration, preferably within the White House or on the National Security Council staff to ensure the sustained White House engagement on GTMO closure necessary to the policy’s success;
  • immediately either (a) directing principals at the agencies that participate in the PRB to reconsider their positions on the three long overdue PRB decisions; or (b) convening an equally long outstanding Review Committee to resolve the cases in limbo; and
  • promulgating guidance interpreting Executive Order 13567 that, inter alia, clarifies the meaning of “necessary to protect against a significant threat to the security of the United States” and the factors to be considered. In particular, the guidance should establish 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.” Additionally, this interpretive guidance should direct the PRB to favorably consider age, duration of detention, its deleterious impact on physical capacity, its mitigating effects on pre-detention connections to hostile actors, and the current status or existence of the entities to which the detainee was previously associated. It should also direct the PRB to favorably consider credible allegations that the detainee under review was tortured by any agent of the U.S. government or a partner government with American complicity. And it should direct the PRB to discount disciplinary infractions while in detention and the credibility of jailhouse chatter that, while potentially facially threatening, is actually unrealistic upon even cursory examination;
  • thereafter, ordering the PRB to hold new hearings for the 19 or so detainees who are neither yet approved for transfer nor engaged in military commissions proceedings; and
  • making senior administration officials available for foreign government engagement in order to open or during the course of transfer negotiations.

Then, Biden should assign to the State Department responsibility for expeditiously negotiating GTMO detainee transfer frameworks that reflect the lessons learned through the Department’s experience leading detainee transfer negotiations during the Obama administration. To that end, the State Department should:

  • immediately resuscitate the detainee repatriation deals with Morocco and Algeria left to gather dust by the Trump administration;
  • begin discussions with appropriate foreign governments concerning the potential repatriation or resettlement of the 19 detainees who are not presently approved for transfer but who may become so;
  • potentially reestablish the GTMO closure infrastructure at the State Department as a matter of expediency. Although reestablishment of the GTMO Closure office should not be necessary to achieve GTMO closure, a State Department office responsible for detainee affairs may prove beneficial in correcting the Trump administration’s apparent failure to monitor earlier detainee transfer agreements and to address issues arising from law-of-war detention in other contexts in which the United States is interested; and
  • ensure senior State Department officials, including American ambassadors abroad, prioritize and support GTMO closure by appropriately incorporating GTMO closure points into their communications with foreign government officials.

Finally, timely Department of Defense cooperation and support for GTMO detainee transfer negotiations and transfers is vital to the success of GTMO closure efforts. The Department of Defense controls access to Naval Station Guantanamo Bay, as well as the detainees themselves. The Defense Department also has access to substantial funds that are relatively unrestricted. Biden should direct DOD to facilitate the expeditious transfer of detainees in its custody by:

  • ensuring that the defense secretary is actively engaged with GTMO closure and their office is receptive to requests for action from the detainee affairs office within the Office of the undersecretary of defense for policy;
  • providing non-reimbursable air assets to facilitate State Department access to GTMO detainees, as well as foreign government interviews of GTMO detainees in furtherance of detainee transfer negotiations;
  • making Emergency & Expeditionary Expense funds available to support U.S. efforts to transfer GTMO detainees by defraying the security and reintegration costs such transfers impose on receiving states. These costs may include host-government expenses related to security measures, housing, physical and mental healthcare, education or job training, an allowance or stipend, and family reunification. Experience demonstrates that the availability of such funding both encourages foreign partner assistance in resettling former GTMO detainees and promotes the successful, peaceful (re)integration of former GTMO detainees; and
  • establishing the priority/urgency/justification/category of GTMO detainee transfer flights at a level that is sufficiently high to ensure that flights are not delayed unless absolutely necessary.

Resolving the Military Commissions

The 12 men engaged or potentially engaged in GTMO military commission proceedings pose likely the most politically fraught challenge of GTMO closure. These men represent the United States’ remaining efforts to bring to justice alleged terrorists captured in the wake of the 9/11 attacks—including, five men accused of playing some role in the conspiracy to launch those attacks.

Unfortunately for everyone concerned, the three generations of GTMO military commissions since Sept. 11, 2001, have been an abject policy failure. One need look no further than the long delayed 9/11 military commission trial or the fragility of the vanishingly few military commission convictions for evidence of that proposition.

Federal courts, which are more than capable of trying terrorism-related cases, remain a theoretical option for prosecuting, convicting, and sentencing 10 of the 12 men at GTMO actually or potentially subject to prosecution before military commissions. But each of those 10 men is a victim of U.S. government-sponsored torture, which casts serious doubt on the fairness of any trial sponsored by their torturers.  To make matters worse, in some cases the long-term effects of the U.S. government’s torture include cognitive decline and damage to memory resulting from trauma, which prevents or inhibits certain defendants from meaningfully assisting in their own defense. Worse yet, it increasingly appears that their torture is inextricably entwined with the government’s case—at least for the 9/11 defendants. The centrality of torture to these cases shadows them in doubt in a manner that was simply not publicly known when last the government considered their prosecution in federal court.

In light of the failure of GTMO military commissions prosecutions as a matter of policy, and in light of the evidentiary and fair-trial challenges posed by prosecuting these torture victims in federal court, plea bargains (whether before military commissions or federal courts) are likely the U.S. government’s best route to resolving these interminable cases while achieving some measure of justice.

To that end, Biden, through his secretary of defense, should appoint a GTMO military commissions Convening Authority who will open plea negotiations with the seven men who are already charged and in the midst of pretrial proceedings before military commissions. At least a few of these plea agreements will likely result in sentences less than life imprisonment. Given the duration of the defendants’ time in American custody already, the Convening Authority should follow the plea agreement modeled by Ahmed al Darbi and others in which a substantial portion of any sentence is served overseas.

Finally, there are three men whom the Office of the Chief Prosecutor has repeatedly tried and failed to charge in connection with the 2002 Bali bombings. The best path forward may be entering a pretrial agreement in which the Convening Authority agrees to refer certain charges and those men agree to plead guilty, while admitting such facts as would amount to a modicum of justice in the Bali bombing case.

The Remainder

Taken together, renewed diplomatic emphasis, new guidance for the PRB, a reinvigorated GTMO closure process, and plea-based resolution of the military commissions are likely to result in substantial progress towards closing the detention facility at Guantanamo Bay, Cuba. But there may well be some small number of detainees who are never approved for transfer by the PRB. Closing GTMO means transferring these men, as well. The Biden administration should focus its diplomatic efforts concerning the repatriation or resettlement of these detainees—the remainder, sometimes described by the Obama administration as the “irreducible minimum”—on establishing transfer frameworks that incorporate and respond to the concerns identified by the PRB in determining these men pose a significant, continuing threat to the United States.

As Bush acknowledged long ago, closing the detention facility at Guantanamo Bay is a worthy goal in its own right. Operation of GTMO has cost American taxpayers at least $7 billion since 2002. According to national security experts and practitioners, the diplomatic, security, and reputational costs of the continued operation of GTMO are substantial if unquantifiable. Unfortunately, the benefits of GTMO have proved even more illusory: the limited intelligence benefits of GTMO are long since exhausted; and the security benefits of detaining primarily low-level fighters (at best) are minimal.

Additionally, ending the Forever Wars requires releasing the men who make up the irreducible minimum. When wars end, a State’s authority to detain enemy fighters ends as well. That principle applies here, as well. Once its war with al Qaeda, the Taliban, and associated forces ends, as matter of international law, the United States will no longer enjoy the expansive authority it claimed to justify the detention of their fighters. Likewise, once the 2001 Authorization for the Use of Military Force is repealed, the United States will no longer have the domestic legal authority to detain the men in U.S. custody at GTMO. Continued detention of the remainder at GTMO necessarily means the continuation of the Forever Wars.

Moreover, the continued detention of these men represents an impossible pursuit of perfect security. The release of prisoners of war, or similar, always entails some measure of risk. Indeed, as of 2016, fewer than 15 detainees out of the then-nearly 700 detainees transferred from GTMO were reportedly implicated in hostile activities involving Americans. Tragically, these hostile activities resulted in the deaths of six Americans, primarily in the course of firefights involving U.S. forces in active war zones. The death of any American abroad is one too many. But, with the post-transfer track record of former GTMO detainees, it would be difficult—even unreasonable—to conclude that negotiated transfers, designed to substantially mitigate the threat posed by a handful of aging, often sick, men some 15 years removed from their networks, measurably increase the risk exposure of the United States. Indeed, it is possible that the negotiated transfer of many of the remaining GTMO detainees is less risky than the transfer or release of dozens of men in the waning days of U.S. control of the Parwan Detention Facility in Afghanistan that proceeded with little public comment or Congressional involvement. And, the negotiated transfer of GTMO detainees certainly exposes the United States to less risk than that posed by the thousands of, often combat hardened, former ISIS fighters wandering Syria and elsewhere whom the United States has never and likely will never detain. If anything, continuing to detain these men as years stretch into decades increases the risk of compounding the reputational harm incurred when the United States opened GTMO, hampering counterterrorism cooperation, suffering disadvantageous decisions from reengaged federal courts, mythologizing foot soldiers and ordinary criminals into Rambos or Bond villains, and inspiring nonparticipants to take up the fight against the United States.

Transferring the remainder in light of the PRB’s up-to-date assessments will ensure that the location and parameters of their ultimate disposition are appropriately selected and negotiated. These negotiated transfer frameworks will be subjected to the same intensive, interagency vetting process that resulted in substantially safer detainee transfers during the Obama administration. Premising transfers on the PRB, the interagency vetting process, and serious negotiations with foreign partners will, in turn, help ensure that when the small number of difficult cases are resettled or repatriated, GTMO is closed—and it is closed safely and responsibly.

A Role for Congress in GTMO Closure?

Notwithstanding its famed GTMO-related recalcitrance during the Obama administration, Congress should assist President-elect Biden’s efforts to close GTMO by, at least, lifting the blanket prohibition on detainee transfers to the United States. Under current law, Biden has sufficient flexibility to negotiate and implement the foreign transfers necessary to reduce the GTMO detainee population by as much as 75 percent. But, assuming the United States seeks incarceration of those guilty of terrorism in its prisons—and assuming that Biden does not challenge the constitutionality of the law restricting detainee transfers—Congress must lift the blanket prohibition on U.S. transfers so certain of the military commission defendants or prospects may serve sentences arising from plea agreements.

Congress should also lift the blanket prohibition on transfers to the United States to allow GTMO detainees to be transferred, temporarily, for serious or emergent medical care. The medical facilities available to the detainees at GTMO are simply inadequate. If application of the Geneva Conventions by analogy means anything, it should mean that in situations where servicemembers are medevacked for basic surgery, law-of-war detainees in their custody should be as well. Detainees’ lack of access to adequate medical care at GTMO, especially in emergent circumstances, may well place the United States out of compliance with its international obligations. Authorizing temporary transfer to the United States for necessary medical procedures is the appropriate course of action while the Biden administration works to finally close the facility.

Finally, Congress could improve the efficiency of the detainee transfer process by lifting the transfer restrictions and certification requirements most recently imposed by the 2016 National Defense Authorization Act. Congressional imposition of transfer restrictions for law-of-war detainees is at least inconsistent with historical practice. It may also unconstitutionally impinge on the president’s inherent authority as commander-in-chief. And the restrictions are unnecessary because they are largely redundant with the policy-based efforts of the rigorous transfer-review process adopted by the Obama administration. The real effect of the transfer restrictions is to inject delay into the transfer process by requiring congressional notification 30 days in advance of any transfer. The transfer restrictions also create unnecessary opportunities for bureaucratic fiction that contribute to delay.

As much as President-elect Biden, members of Congress should seek a swift and safe conclusion to the fiasco of detention at Guantanamo Bay. Certainly, Congress can find a better use for the more than $540 million spent annually on the detention facility’s operation. And certainly the approximately 1,500 Reserve and National Guard troops charged with guarding the 40 detainees could be deployed to greater effect elsewhere or, possibly, not at all—to give them and their families a respite from the last 20 years. Moreover, Congress should seek to positively contribute to restoring America’s place in the world by, at the very least, rescinding the nonsensical legislative policy that forces the executive branch to treat GTMO detainees, regardless of relative threat, differently than the United States treated (treasonous) Confederate fighters, Nazis, the Vietcong, or even other alleged members of al Qaeda who happened to be detained anywhere but Guantanamo.

Conclusion

Despite Trump’s threats to load GTMO up with “bad dudes,” it looks like Biden will find the population of the detention facility at Guantanamo Bay much as he left it on Jan. 20, 2017. Although the infrastructure the Obama administration built to responsibly close GTMO has been dismantled in part and otherwise left to gather dust, enough of it remains that the GTMO closure process can be restarted quickly. The Biden administration is thus well positioned to take concrete, tangible steps toward finally cleaning up Guantanamo’s stain on America’s reputation and restoring America’s values-based global leadership in the near term. It should do so—and it can start by reviving, with slight modification, the GTMO detainee transfer policy process abandoned by Biden’s predecessor. 

The opinions and views expressed are those of the author alone. They do not represent the views of the US Department of Defense or the US Government.

Image: Razor wire tops the fence of the U.S. prison at Guantanamo Bay, also known as “Gitmo” on October 23, 2016 at the U.S. Naval Station at Guantanamo Bay, Cuba. Photo by John Moore/Getty Images

 

About the Author(s)

Benjamin R. Farley

Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization. He is assigned to the team representing Ammar al-Baluchi, one of the five codefendants in the 9/11 conspiracy case who face capital charges before the military commission at Guantanamo Bay, Cuba. He previously served as Senior Adviser to the Special Envoy for Guantanamo Closure at the U.S. Department of State from 2013 – 2017. Follow him on Twitter (@br_farley).