In January 2002, U.S. Secretary of Defense Donald Rumsfeld claimed the treatment of Guantánamo Bay detainees was proper and humane, that no detainees were mistreated or harmed. Today, we know his claims were far from the truth. Some detainees were brutally tortured. President Barack Obama famously promised to close the facility, but never did.
Now on the eve of the 20th anniversary of the September 11 attacks, the detention center is still open. Thirty-nine detainees are still in custody, down from a high of nearly 800. As U.S. troops withdrew from the war in Afghanistan, what happened at Guantánamo Bay, and what does the future there hold?
Although the Obama administration prioritized the closure, making it a reality was tough due to political opposition, says Karen Greenberg. She’s the director of the Center on National Security at the Fordham University School of Law, and author of “The Least Worst Place: Guantanamo’s First 100 Days.”
The Obama administration started a method to remove detainees from Guantánamo, according to Ian Moss, the former chief of staff to the Special Envoy for Guantánamo Closure during the Obama years. By the end of the administration, the office was able to negotiate deals for the transfer of nearly 200 detainees, according to Greenberg.
Then under President Donald Trump, the detention camp became even more politicized. Trump claimed he would load it with “bad dudes,” although that never came to fruition.
“It's almost like when he took over, Guantánamo was put on pause. And there were hearings that went on pretrial hearings,” Greenberg explains. “There was incremental movement, there was only one release. And it had to do with something that had been arranged before. … He made very strong statements about it and dropped it.”
Where did the detainees go? Moss says many were sent back to their home countries, as well as other American-allied countries. Today, he notes there are government statutes that bar Guantánamo detainees from entering the U.S. for any purpose, even if they haven’t been charged with a crime.
According to Greenberg, 10 of the camp’s detainees have been deemed as no longer a threat and have been cleared for release by the Periodic Review Board. Others have been found guilty or are currently on trial. That includes Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks.
What’s challenging, Moss points out, are issues of torture and mistreatment of detainees, and how they impact negotiated resolutions to each case.
“The government [could] seek or [could] offer, say, a life sentence in the context of capital cases … which will surely be another decade of litigation, and then potentially ... an appeals process that will go on for quite some time and ultimately will not result in capital punishment. Capital punishment was taken off the table the day that U.S. authorities decided to utilize what we have come to know as torture,” he explains.
Then there’s the matter of where people found guilty would serve their sentences. They could possibly go abroad or be moved to the U.S., Moss says.
“The only individuals that could or should come to the U.S. mainland would be those individuals who are convicted and serving sentences. But … that requires a conversation and arguably a change in the law, although there are some that would argue that the president has inherent authority to move them. But that surely would result in a massive political fight. That may not be worth it.”
Is it possible for Guantánamo to close before the next September 11 anniversary? Moss says yes, but only if it becomes a political priority.
“It absolutely is possible, but it requires sustained and high level attention. It's not going to happen on its own. It really needs to be a priority. And as the Biden administration is looking to turn the page or move on, it also has to address these kind of vestigial policies like Guantánamo, you cannot leave the endless war era while maintaining endless war era policies.”
Greenberg adds, “At the cost of $13 million per detainee per year, it's a selling point, even with Congress, I think that Biden has made it clear he wants to end the war, and this is part of ending the war. And above all, the compromises that have been made in the name of laws and norms and setting up Guantánamo Bay, not to mention the international image that it faults the United States, that it's damaged over these 20 years — It needs to close and I, too, think it will close.”