27.11.20
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 Joe Biden’s victory in the Presidential Election, it’s reassuring that Guantánamo is back on the radar, after four long years under Donald Trump in which time may as well have stood still.
The Just Security website has just published a powerful article, “A Path for Renewing Guantánamo Closure,” which we’re cross-posting below. It was written by Benjamin R. Farley, who served as Senior Adviser to the Special Envoy for Guantánamo Closure at the U.S. Department of State from 2013-17, and is currently a Trial Attorney and Law-of-War Counsel at the U.S. Department of Defense, Military Commissions Defense Organization, assigned to the team representing Ammar al-Baluchi, one of the five co-defendants in the 9/11 trial.
Farley explains how, of the 40 men still held, 30 can be released “simply by restoring, with slight modification, the successful GTMO closure policy process developed during the Obama administration,” although he concedes that, “[t]o finish the remaining 25 percent of the project, [he] will likely need the historically elusive support of Congress.”
In analyzing the cases of the men still held, Farley notes that, in addition to the relatively well-known example of the five men still held who were approved for release by high-level review processes under President Obama, four or five other men were likely to have been approved for release by the second of Obama’s two review processes, the parole-style Periodic Review Boards, had it not been for what he calls the “political interference” of Donald Trump.
To ensure further releases or transfers, Farley provides details of how the PRB process can be revived and modified, as well as establishing a coherent narrative for how the necessary steps can then be taken to ensure that the prison is closed once and for all.
I won’t summarize these suggestions, because I hope you have time to read the article, and I also hope that you’ll share if with others who might find it helpful.
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 Guantánamo 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 Guantánamo 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 Guantánamo 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).
Military commissions proceedings: 12.
Continuing law-of-war detention: 19 (or 18).
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:
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:
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 Guantánamo 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:
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 Guantánamo 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 Guantánamo 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 service members 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 Guantánamo 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 Guantánamo.
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 Guantánamo 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 Guantánamo’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.
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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.
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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3 Responses
Andy Worthington says...
When I posted this on Facebook, I wrote:
Here’s my latest article, a cross-post, with my own introduction, of a detailed proposal for how Joe Biden can close the prison at Guantanamo Bay, written for Just Security by Benjamin Farley, currently a 9/11 trial attorney, and, from 2013-17, Senior Adviser to the Special Envoy for Guantanamo Closure at the State Department.
It’s an extremely thorough analysis, and it gives me hope that we really might eventually see the closure of the prison. Of particular interest are Farley’s suggestions that some of the 26 “forever prisoners,” whose ongoing imprisonment without charge or trial is justified because they have passed through the over-cautious parole-type process known as the Periodic Review Boards, might well have been approved for release had it not been for Donald Trump’s implacable opposition to anyone being released from Guantanamo under any circumstances.
...on November 27th, 2020 at 3:14 pm
Andy Worthington says...
Susan McLucas wrote:
I hope they are listening and will do something about this, finally!
...on November 28th, 2020 at 5:53 pm
Andy Worthington says...
Very much so. Good to hear from you, Susan!
...on November 28th, 2020 at 5:53 pm