Last year began with some promise that the Biden administration would finally make critical and substantial progress towards closing the infamous Guantanamo detention facility, and address ongoing rights violations there in the interim. Three men were transferred out in February, followed by another one each in March and April. That same month the administration allowed a technical visit to Guantanamo by the United Nations Special Rapporteur on Counterterrorism and Human rights – the first of its kind by any of the U.N.’s independent experts. And the White House was actively considering a negotiated resolution to the military commission prosecution of the men alleged to be most responsible for the Sept. 11, 2001, attacks (the “9/11 case”) – the only way to resolve the case that offers 9/11 victims’ family members a measure of justice and finality.
But those turned out to be the high points. For the rest of the year, either the status quo remained or the administration regressed.
Many observers had hoped that the handful of transfers in the beginning of 2023 were a sign of, and momentum toward, significantly more to come. Over the summer and into the fall, it looked that way. Until it didn’t.
There are certain steps that Joint Task Force Guantanamo (JTF) takes when a transfer is imminent. JTF took those steps early this fall with respect to a number of men. All of them have been recommended for transfer, unanimously and at the Cabinet Secretary level, by every executive branch agency with a significant national security function. These steps raised the men’s hope for release. JTF then walked back, crushing any such hope.
To be clear, these aren’t JTF’s decisions. It doesn’t take these steps until after the State Department has reached an agreement with a country to repatriate or resettle the men; the Defense Department has provided Congress with details of the transfer (which, by law, the administration must do 30 days in advance of most transfers); and the transfer is imminent.
In other words, it appears these men are continuing to languish at Guantanamo not for lack of a country willing to receive them, but for some other reason. As with most things Guantanamo, Occam’s razor suggests that reason is politics. If so, and absent some other compelling justification (the need to focus on the situation in the Middle East would not be a compelling one, given it is unrelated to Guantanamo transfers and there will always be a crisis to manage) the administration’s decision is as misguided as it is disheartening.
The 9/11 Prosecution Drags On
For the better part of 2022, and into 2023, the administration was considering a negotiated resolution to the 9/11 case. Why? Because key senior officials finally came to grips with what’s long been obvious to close observers: the 9/11 case (first charged in 2008!) might never go to trial. And even if it does, the case is built on quicksand. The government’s best evidence was obtained either directly under torture, or from the defendants while they were suffering the effects of their torture, and so any conviction is unlikely to survive review in federal court. There, unlike in the commissions, there isn’t any question about whether Due Process and other constitutional protections apply.
As one of us has written previously:
This is why there have been so many voices who have called for plea agreements to end the commissions – from former Bush administration Solicitor General Ted Olson, to Senator Dick Durbin (D-Illinois), to both prosecutors and defense counsel in the 9/11 case (whose efforts to negotiate a plea have been stymied by senior administration officials’ inertia), to 14 children and grandchildren of mothers and grandparents killed on 9/11. Not because pleas are the solution that any of them may have wanted in the immediate aftermath of 9/11, but because, 21 years later, they are the only “now available justice.”
The President could legitimately have claimed victory by securing that justice, and bolstered his legacy in the process. Instead, the White House rejected the terms of the agreement, which effectively killed the deal after 18 months of negotiating. What were the terms that some senior officials found so objectionable? Agreeing not to hold the men in solitary confinement (which can itself constitute a form of torture, especially when used on torture survivors); allowing them the ability to practice their religion, to access counsel, and to communicate with their family; and promising that they wouldn’t arbitrarily be moved without warning to another Black Site. The defendants also wanted adequate medical care, including at least some treatment for the consequences of years-long torture that they endured at U.S. hands, the profound physical and psychological effects of which continue to worsen.
In other words, the men asked for humane conditions of confinement. The administration refused. And now the case is back to spinning, round and round, on the rusty hamster wheel of injustice.
Conditions of Confinement Continue to Deteriorate
When the Biden administration decided to allow Fionnuala Ní Aoláin, the former U.N. Special Rapporteur on Counterterrorism and Human Rights, unprecedented access to Guantanamo – a decision for which it deserves, and we have given it, credit – it had to know that she would identify human rights issues, some serious. And one would assume, then, that the administration was willing to receive that feedback constructively – both publicly and privately – even if it didn’t agree in all respects, and work towards addressing those issues.
The former played out as expected: for example, among other concerns, Ní Aoláin found that medical care is inadequate, especially for a population comprised almost entirely of torture survivors who have received no rehabilitative care. She flagged problems with meaningful access to family communication. And she noted a general arbitrariness that pervades policy and practice at Guantanamo, which is especially harmful to torture survivors. (Ni Aoláin highlights some of the additional concerns she raised in a excellent Just Security post today).
The administration responded publicly by trying to minimize the weight of the Special Rapporteur’s role; flatly rejected many of her findings; and made a series of conclusory, misleading statements that, if intended to prove the Special Rapporteur wrong, had the opposite effect. (Ni Aoláin is more optimistic about the U.S. response than we are. We hope she’s right).
Several months later, when the U.S. appeared before United Nations Human Rights Committee as part of the fifth periodic review of U.S. compliance with its obligations under the International Covenant on Civil and Political Rights (ICCPR), it doubled down. The Committee asked about the Special Rapporteur’s findings on conditions and treatment of detainees, and what steps the United States is taking to address them. The delegation responded by saying that the United States “disagrees in significant respects with many of the factual and legal assertions the Special Rapporteur has made.” Regarding her finding that the cumulative effects of certain structural deficiencies at Guantanamo amount to cruel, inhuman and degrading treatment under international law, the delegation “respectfully but emphatically disagree[d].”
Specifically on medical care, the delegation reiterated the longstanding talking point that JTF is committed to providing care “comparable to that which US military personnel receive” while stationed at Guantanamo. That might be technically accurate to an extent – there are certainly some military medical professionals at Guantanamo who very much want to be able to provide commensurate care – but it’s impossible to do so because, for any remotely complex medical issue, service members are sent back to the United States (because the Defense Department knows Guantanamo can’t provide the necessary care). By law, detainees must stay put.
It is of course possible that there have been improvements at the margins on some of these issues to which we are not privy, but we are not aware of any meaningful change. Hopefully it may yet be forthcoming.
2023 is perhaps best described as a lost year for closing Guantanamo, and the Biden administration can’t afford lost years. Guantanamo continues to cause profound damage both inside and outside of its walls. The administration does not have to continue down 2023’s path. The steps to close Guantanamo are there for the taking, and 2024 could be its last chance to take them.