On January 11th, the Guantanamo prison marked its 20th year. Although the population has slowly decreased over time, there’s a lot about Guantanamo that hasn’t changed. It still fuels hatred and bigotry, and flouts the rule of law. Torture’s legacy continues to loom large—from the speed with which victims’ health is deteriorating, to its impact on the military commissions which, save for the rare exception, can’t seem to produce anything but paralysis and injustice. And on the global stage, Guantanamo remains a target for charges of U.S. hypocrisy from the likes of China and Russia.
One aspect of Guantanamo, however, clearly has changed: the politics surrounding it, which are much more conducive to closure now than they once were.
Guantanamo Politics in the Obama Era
When Barack Obama was President, Guantanamo was a lightning rod for public controversy, for several reasons. First, throughout Obama’s eight years in office, events with an actual or perceived connection to the so-called “War on Terror,” of which Guantanamo is a quintessential symbol, frequently dominated the news. For example, in 2009, an Army psychiatrist who had communicated with Anwar al-Awlaki (a Yemeni-American imam later extrajudicially killed by a U.S. drone strike) shot dozens of servicemembers at Fort Hood in central Texas. On Christmas day 2009, Umar Farouk Abdulmutallab – reportedly working with Al Qaeda in the Arabian Peninsula – attempted to blow up a plane approaching Detroit using explosives hidden in his underwear.
Over the next year, Obama sent an additional 30,000 troops to Afghanistan to fight the Taliban and deny Al Qaeda a safe haven there, emphasizing that new attacks on the United States “are being plotted as I speak.”
In 2011, the United States located and killed Osama Bin Laden in Pakistan. The following year, members of Ansar al-Sharia attacked the U.S. consulate in Benghazi, Libya, resulting in the death of Ambassador Christopher Stephens and three other U.S. citizens. Obama’s second term saw the Boston Marathon bombing, along with the rise of ISIS and several other terrorist groups—from Boko Haram in Nigeria, to Al Qaeda in the Islamic Maghreb in Libya and the Sahel, to al Shabaab in Somalia. There was also a series of terrorist attacks around the word, including the mass shooting at the French satirical newspaper Charlie Hebdo, the Westgate Mall attack in Kenya, and scores of others.
More specific to Guantanamo, in late 2014 – after widely reported handwringing, including from senior government officials, over whether the sky would fall (it didn’t) – the Senate Intelligence Committee released the executive summary of its Torture Report. A nasty public fight over the report’s accuracy and credibility followed.
Most of these events were among the top national news stories for the years in which they occurred. Not surprisingly, “terrorism” was among the issues most important to voters in each of the 2008, 2012, and 2016 presidential elections.
Second, a key aspect of Obama’s closure plan, and the most politically toxic—seeking to bring prisoners to the United States, either for prosecution or continued indefinite detention—took center stage just months after his inauguration. In May 2009, the Senate voted 90-6 to bar the President from sending anyone held at Guantanamo to the United States. The vote came on the heels of the Obama administration releasing four of the George W. Bush administration’s infamous torture memos. The day following the vote, Obama and former vice president Dick Cheney delivered dueling speeches defending their respective administration’s national security policies and practices. According to the News Coverage Index from the Pew Research Center’s Project for Excellence in Journalism, these developments resulted in “terrorism registering as the No. 1 story for the third time in little over a month.”
Third, the fact that it was Obama trying to close Guantanamo created a near-perfect storm for animating opposition on the basis of deep-seated racism and anti-Muslim discrimination. This phenomenon entangled with more run-of-the-mill political forces also at play in the Obama years: many of the same members of Congress who didn’t oppose the Bush administration’s large-scale transfers out of Guantanamo were in a hurry to complicate Obama’s closure efforts and to portray Democrats as weak on terrorism.
Why Biden’s Guantanamo Politics are not Obama’s
The Biden administration is operating in a drastically different environment.
Terrorism was not among the issues most important to voters in the 2020 election. And while it remains a topic of public discussion (including whether or when the “terrorism” label is appropriate), it’s most frequently in the context of white supremacist violence—from the car attack against counter-protesters at the Unite the Right Rally in Charlottesville, to the January 6 insurrection. Indeed, according to a recent Economist / YouGov poll, three in five Americans see “domestic terrorism” as a serious threat to the country. In June last year, following an internal review Biden ordered his first day in office, his administration released the U.S. government’s first-ever “National Strategy for Countering Domestic Terrorism,” which is rooted in combatting “racially or ethnically motivated violent extremists who advocate for the superiority of the white race.”
One might have expected the U.S. withdrawal from Afghanistan and the Taliban’s resurgence to shift the narrative back to some degree, but for the most part it hasn’t. Instead, press focused largely on how badly the administration handled the withdrawal itself, and on the resulting refugee crisis. And in fact, where U.S. counterterrorism operations are making headlines today, regarding the use of lethal force in particular, it’s largely because of the harms those operations have caused and a public push for the Biden administration to adopt a different approach; one consistent with his human rights commitments and rhetoric.
Correspondingly, at least among Republicans, Guantanamo no longer has the same political salience that it once did. Donald Trump, who leapt at every chance to rile up the conservative base, made that clear when he decided to prosecute Sayfullo Saipov – who drove a pickup truck into a crowded Manhattan bike path in 2017, killing eight people – rather than send him to Guantanamo. On the campaign trail, Trump vowed to “load [Guantanamo] up with some bad dudes.” Had he believed there was actual political value in following through, Saipov would surely be there today.
The near total absence of any pro-Guantanamo voices in press coverage around Guantanamo’s 20th anniversary – during a midterm election year, no less – is consistent with that political calculation. Perhaps Trump’s choice to all but ignore Guantanamo during his presidency diminished its political point-scoring value even further.
Recent polling shows that two thirds of Americans either support closing Guantanamo, or don’t much care. Only 17% strongly oppose, even when the plan includes prosecuting men in U.S. courts. Here, Biden has yet another advantage over Obama: he hasn’t yet, doesn’t need to, and shouldn’t, focus on bringing men to the United States for trial (and certainly not for continued indefinite detention). The 27 men who have never been charged with a crime, and the two who have already pled guilty, can be resettled or repatriated. The ICRC’s extraordinary public rebuke of the administration for failing to transfer men out more quickly underscores the urgency. Current law doesn’t prevent foreign transfers, and in the unlikely event that some Members of Congress wanted to legislate new obstacles to such transfers, assuming Biden is committed to closure they would need a super-majority to do so, which they don’t have.
For the ten men still being prosecuted before the commissions, trials – in any forum – are no longer the answer. As Brig. Gen. John Baker, the military commissions chief defense counsel from 2015 through 2021, explained to Congress last month, all of the “active” cases suffer from the same insurmountable problem: “The United States chose to secretly detain and torture the men it now seeks to punish. From the beginning, justice was an afterthought.” Because “[t]orture impacts and undermines every aspect of these prosecutions,” none of them has a trial date set. According to Baker, the 9/11 case was closer to trial when he assumed his post than when he retired six years later.
If the government has sufficient evidence untainted by torture to continue prosecutions, the only realistic path forward is to pursue plea agreements with the defendants. Fortunately, in stark contrast to U.S. transfers for detention or trial, pursuing pleas appears to be politically palatable across the board.
General Baker, Colleen Kelly (whose brother died on 9/11), former federal prosecutor Katya Jestin (co-managing partner at Jenner and Block, and a member of Majid Khan’s defense team), and retired Marine Corps General Micheal Lehnert (who stood up Guantanamo) all advocated for plea agreements before the Senate Judiciary Committee in December. The option was discussed at length. Not a single committee member, Republican or Democrat, raised any objection. Rather, one of the Republican witnesses who testified at the hearing – Cully Stimson, head of detainee policy during the Bush administration – opened his remarks by saying “I would like to associate myself” with Baker’s written testimony, which makes an in-depth argument for why “bring[ing] this sordid chapter of American history to an end … can only come through a negotiated resolution of the cases.”
By their nature, plea deals would be negotiated confidentially and quietly. In the event a defendant was sentenced to incarceration beyond the years he already spent at Guantanamo, an agreement could include that he serves the additional time abroad, as was the case for Ahmed Muhammed Haza al-Darbi, along with David Hicks and Omar Khadr before him. If any agreement required imprisonment in the United States, convincing Congress to allow U.S. transfers for that purpose is a much different proposition if only a handful of men remain, all convicted criminals.
Biden Can Capitalize on Today’s Guantanamo Politics
It’s understandable if some Biden administration officials might have a difficult time seeing Guantanamo in this new light, especially given Biden’s own experience as Vice President and that of many of his senior advisors serving in the Obama administration. To be sure, the administration can count on a handful of lawmakers at times regurgitating the same tired talking points as it makes visible progress towards closure. They’ll try to fearmonger around some foreign transfers by emphasizing ominous-sounding connections to terrorism.
But they’ll ignore how physically and psychologically frail many of these men are, having aged beyond their years under the weight of indefinite detention and, in many cases, torture. They won’t mention that the allegations to which they’re pointing are two-decades old, and generally relate to circumstances (the “battlefield” in Afghanistan) or people (Osama Bin Laden) that no longer exist. Most important, there’s precious little evidence that there’s any meaningful political constituency behind these rote protestations.
The truth is that, in 2022, closing Guantanamo and ending indefinite detention is far more likely to draw praise from a variety of stakeholders, progressives in particular – among whom Biden is hemorrhaging support, to the point that some are discussing a 2024 primary challenge – than it is to create any more opposition than he already faces. Put another way, Biden can amass significantly more political capital by closing Guantanamo than he would need to spend to do it. (My colleagues and I have described in more detail how closure should proceed, here and here). To get that kind of political win for his core voters, though, the administration can’t remain in a defensive crouch, and that’s as true on Guantanamo as it is on voting rights or the economy.
Of course, convenient politics isn’t why Biden should act urgently to close Guantanamo—he should do so because it’s right, and just, and long past time, and also because he promised to. Nor do challenging politics excuse Obama’s failure to get the job done. But to the extent that political concerns with moving aggressively toward closure were at one time persuasive among some executive branch officials, they shouldn’t be any longer.