If Elected in November, Will Joe Biden Close Guantánamo?


A composite photo of Joe Biden and a guard tower at Guantánamo.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

With just four months to go until the US Presidential Election, there is hope, in some quarters, that Donald Trump will lose to Joe Biden. The fact that this is not a foregone conclusion shows how broken American politics has become. Openly racist, Trump has been the most incoherent president imaginable, and is currently mired in a COVID-19 crisis of his own making, as the virus continues on its deadly path, largely unchecked, through swathes of the US population. And yet he retains a base of support that doesn’t make it certain that he will lose in November.

His opponent, Joe Biden, Barack Obama’s vice president for eight years, faces problems of his own. 77 years old, he is even older than Trump, and in terms of representing the people of the US, it is somewhat dispiriting that the choice is between two white men in their 70s. Nevertheless, on many fronts — not least on Guantánamo — it is inconceivable that Biden can do a worse job than Trump has over the excruciating three and a half years since he took office in January 2017.

On Guantánamo, Trump announced in a tweet, several weeks before his inauguration, that “there must be no more releases from Gitmo,” and he has been almost entirely true to his word. He inherited 41 prisoners from Obama, and only one of those men has been released — a Saudi citizen who was transferred back to Saudi Arabia for ongoing imprisonment in February 2018, to honor a plea deal agreed in his military commission trial in 2014.

Of the 40 men still held, five were approved for release by high-level government review processes under President Obama, but they weren’t released before he left office, and there is no legal mechanism that can force Donald Trump to release them. Just nine are facing, or have faced trials, while 26 others have been aptly described by the mainstream media as “forever prisoners.” Some of these men were recommended for ongoing imprisonment without charge or trial in 2009 by the Guantánamo Review Task Force, the first of two review processes established by Obama. The task force recommended others for prosecution, until a number of successful appeals against some of the few convictions secured in the military commission persuaded officials otherwise.

In total, 64 men who had either been recommended for prosecution or for ongoing imprisonment without charge or trial were put through a second review process, the Periodic Review Boards, from 2013 to 2016. This parole-type process led to 38 men being recommended for release (with all but two subsequently released), while the 26 “forever prisoners” still held were recommended for ongoing imprisonment. The Periodic Review Boards have continued under Trump, but have failed to deliver a single recommendation for release, and, as a result, the prisoners are now boycotting them.

For opponents of Guantánamo, as noted above, it is inconceivable that any president could be worse than Donald Trump, but that is not to say that Joe Biden, if elected, would fulfill campaigners’ wishes. After all, Barack Obama campaigned on a promise of closing the prison, and reiterated that promise on his second day in office in January 2009, when he said that it would be closed within a year. Eight years later, he left office without fulfilling that promise, although he did, in the end, release nearly 200 of the men held when he first took office.

Obama blamed Congress for thwarting his plans, but while there is considerable truth to that claim, because Republicans controlled Congress for the last six of his eight years in office, and repeatedly obstructed efforts to release prisoners or work towards fulfilling his promise to close the prison, he failed to take advantage of his control of Congress in his first two years in office, and, after that, refused to spend political capital overriding Congress as the commander-in-chief.

And so to Joe Biden. As Carol Rosenberg explained in a recent article for the New York Times, Biden’s position is that, “if elected president, he would support shutting down the military prison at Guantánamo Bay,” although he “has declined to specify how he would do it or what he would do with the 40 men held there as wartime prisoners, including the men accused of plotting the Sept. 11, 2001 attacks.”

Questioned about his position on Guantánamo, Biden’s campaign team said in a statement that he “continues to support closing the detention center,” adding — as Barack Obama used to say — that the prison’s continued existence “undermines American national security by fueling terrorist recruitment and is at odds with our values as a country.”

However, as Carol Rosenberg also explained, Biden “rarely, if ever, brings up the topic” of Guantánamo, providing “evidence of how politically toxic it remains after intense Republican efforts to cast Mr. Obama’s [efforts to close the prison] as endangering Americans by transferring terrorists to US soil or sending them without adequate safeguards to other countries.”

In a primary debate in December, when asked about Guantánamo, Biden “blamed Congress for thwarting closure, but rather than suggest a path forward, he pivoted to another issue.”

As Rosenberg also explained, Biden’s foreign policy and national security advisers include “veterans of the failed effort by the Obama administration to close it — notably Tony Blinken, a former deputy secretary of state, and Brian P. McKeon, a former Pentagon policy official — who are almost certainly acutely aware of how painful it was to try to make good on Mr. Obama’s promise.”

As Rosenberg also suggested, “If there is any lesson from the previous administration’s inability to overcome opposition to closing Guantánamo, it may be to avoid drawing attention to the effort,” because, as Barack Obama discovered, once it became apparent that closing Guantánamo “meant moving some of the prisoners — notably former CIA prisoners, including five men accused of plotting the Sept. 11 attacks — to detention facilities in the United States, critics cast the plan as a symbol of weakness and the proposed relocation of the prisoners a potential national security threat.”

As Rosenberg proceeded to explain, “Like tampering with Social Security or suggesting locations for storing nuclear waste, closing Guantánamo became a third rail of political discourse” — a “third rail” being, as Wikipedia describes it, “a metaphor for any issue so controversial that any politician or public official who dares to broach the subject will invariably suffer politically.”

Roy Neel, a former Democratic campaigner told the Times that “one legacy of Mr. Obama’s failure was the danger of making promises,” as Rosenberg put it. “You’re not going to gain any votes because not many people are focusing on this issue, at least rank-and-file voters,” Neel said, adding that Obama was “burned” by his involvement in the issue.

As Neel also explained, “It doesn’t do anything politically to get into it. The worst thing that could happen is Biden is drawn out somehow to look indecisive or weak by going down that rabbit hole.”

In May, a number of organizations including Demand Progress, Code Pink, MoveOn and September 11th Families for Peaceful Tomorrows sent a letter to Biden urging action on various foreign policy topics including the closure of Guantánamo, and repealing the 2001 Authorization for Use of Military Force, which is the legal basis for holding prisoners at Guantánamo.

As they stated, “The Guantánamo Bay Detention Center has been a stain on our nation’s conscience and the most effective recruitment tool used by violent extremists. We call on you to commit to using any and all options within existing authority to seek lawful disposition for the remaining individuals at the detention center and close Guantánamo once and for all.”

In addition, the letter stated, “The long-defunct CIA detention and interrogation program, and at minimum the Senate Intelligence Committee report on CIA torture, needs to be declassified, promulgated internally to reaffirm torture’s illegality, and made publicly available.”

As we wait for further news from the Biden campaign, our position, in closing, is that those who can be prosecuted should be transferred to the US for federal court trials, while everyone else should be released. It is shameful that the handful of men still held who are accused of serious crimes cannot be successfully prosecuted because the military commission trial system is so broken, while others — guilty of nothing more than having reacted against the circumstances of their imprisonment for the last 18 years — continue to be held without charge or trial, apparently for the rest of their lives.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from eight years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

18 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, in which I look at what we might expect, regarding the future of the prison at Guantanamo Bay, if Joe Biden beats Donald Trump in November’s Presidential Election.

    I note that it would, of course, be impossible for Biden to be worse than Donald Trump, who has essentially sealed the prison shut, and has only, under duress, released one prisoner since he took office three and a half long and horrible years ago, but I also caution that, the last time a Democrat was in the White House (Barack Obama), he failed to close the prison, despite promising to do so on his second day in office.

  2. Andy Worthington says...

    Nobuko Tensi wrote:

    Obama promised to close it and he didn’t, we cannot trust politicians.

  3. Andy Worthington says...

    I agree that we can’t trust politicians, Nobuko, but there’s absolutely no chance of any movement on Guantanamo unless Trump is removed from office.

  4. Andy Worthington says...

    Muriel Strand wrote:

    I recall it was Congress that prevented Obama from closing it.

  5. Andy Worthington says...

    Largely, yes, Muriel, but he also had the ability to override Congress but chose not to spend the political capital doing so.

  6. Andy Worthington says...

    Muriel Strand wrote:

    Biden has spent decades in the Senate as opposed to Obama …

  7. Andy Worthington says...

    And that experience may be helpful, Muriel, although primarily the Democrats need a majority in the Senate and the House, as well as taking the White House.

  8. Andy Worthington says...

    Peter Morris wrote:

    Given Biden’s track record under Clinton if not before …
    I very much doubt it!

  9. Andy Worthington says...

    Natalya Wolf wrote:

    I would have to agree with Peter Morris.

  10. Andy Worthington says...

    Yes, I’m not exactly abundant with hope, Peter and Natalya, as I hope the article makes clear, but I do think there will be movement on Guantanamo if Biden wins – and that, at least, some of the nobody prisoners still held will be released.

  11. Andy Worthington says...

    Roy Randall wrote:

    This is something a lot of people don’t understand about US politics. It takes a President to open a gulag in a military installation in a foreign country. But a President can’t close that same gulag in a military installation in a foreign country. Weird, right?

  12. Andy Worthington says...

    We may end up recognizing Guantanamo as an uncloseable facility, Roy, but if that does happen – and the CIA will be happy for their torture victims to be held forever and never actually tried – at least some of the 40 men still held should be freed, those who are, quite genuinely, nobody significant. Trump won’t free them, but a Biden administration might.

  13. Andy Worthington says...

    Amy Phillips wrote:

    I don’t see Biden caring about this and working to shut it down. I don’t see him doing very much at all to improve my country. The only he can and will do is just not be Trump, which is better than nothing – but it’s next to nothing and this country needs so much.

  14. Andy Worthington says...

    Thank you for your poignant and accurate analysis of the profound failures of the two-party system, Amy. It’s pretty much the same in the UK. What we needed – even before COVID-19 – were truly revolutionary ideas about how to shift our economic focus to one that put environmental concerns first, but what we’re stuck with are two parties wedded to almost every aspect of the status quo that is driving us to environmental destruction and ever greater levels of conflict and inequality.

  15. Andy Worthington says...

    Amy Phillips wrote:

    After Covid-19, the most disappointing things about 2020 are the defeat of Corbyn and Sanders.

  16. Andy Worthington says...

    Yes, we are in a terrible place, Amy, because we so desperately need creative, revolutionary, pro-environmental politics that put people and the planet before profit, and yet people are either being seduced by the far-right, or are accepting centrists as somehow representing the left, or are disengaging from politics altogether. Dangerous times.

  17. Andy Worthington says...

    Ed Charles wrote:

    I got one problem with this article. Obama never wanted to really close Guantanamo. All he wanted to do is change its mailing address from what was called a FPO (Foreign Postal Office) to an APO (American Post Office). And when that did not happen, he went whatever.

  18. Andy Worthington says...

    I genuinely think it’s more nuanced than that, Ed. Obama inherited 240 prisoners from Bush. Seeking to find out who he was holding, he set up a task force that told him to release 156 of them, but to hold 84 others, either for trial (36 men) or for ongoing indefinite detention without charge or trial (48 others). These are the 84 men he wanted to transfer to the US mainland so that Guantanamo itself could be closed.

    If this had happened, myself and others believe that the rationale for indefinite detention without charge or trial would have evaporated as result of legal challenges, because rights exist on the mainland that don’t exist at Guantanamo (hence Bush’s decision to set it up there in the first place). However, some attorneys and NGOs disagreed, and told the administration and Congress that they would rather have Guantanamo stay open than move the prisoners to the US. This, quite devastatingly, undermined the administration’s push to close Guantanamo – plus, of course, efforts to actually locate a replacement prison on the US mainland also floundered because everyone concerned became hysterical, as they always do when the notion of moving any Guantanamo prisoner to the US mainland for any reason is mentioned.

    These are crucial points to bear in mind, but it’s also, I think, worth looking at what else happened during the rest of Obama’s presidency. Firstly, he ended up releasing almost all of the 156 men his task force recommended for release, although he had to be pushed to do so repeatedly, in part because he was unwilling to fight the Republicans when they imposed obstacles to the proposed release of prisoners.

    However, it also became clear that, throughout his presidency, his approach to Guantanamo had always been one of extreme caution – or, initially, of misplaced optimism in the military commission trial system. The commissions were subjected to serious legal challenges, so that far fewer than 36 men have actually been put forward for prosecution, and Obama also faced challenges to his task force’s overcautious assessment that 48 men should be held forever without charge or trial because of suspicions about them based on fundamentally untrustworthy evidence – or even just because they had an attitude problem.

    His answer – the Periodic Review Boards – involved parole-type reviews that reviewed the cases of 64 men from 2013-16, and that led to 38 recommendations for release. Most of this could have happened in 2009, during the task force’s prisoner review, if there’d been less of an obsession with caution, but at least it eventually happened, and the prison population ended up at 41 as Obama left office.

    But still some of these men genuinely don’t constitute any kind of a threat to the US, and should be released. That would leave – what? – say two dozen men that the US has a case against, who should be moved to the mainland and tried in federal court, with Guantanamo closed and the military commissions abandoned. I still don’t see that happening, because the CIA is happy for the men it tortured to be held in a broken trial system that won’t ever proceed to trials, but I think we should push for it to happen, just as I also think we should push for any administration that isn’t led by Trump to release all the men still held who are never going to be charged or tried.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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