President Joe Biden’s file of dealing with the U.S. navy jail at Guantánamo Bay, Cuba, is decidedly blended. He succeeded in lowering the detainee inhabitants he inherited by greater than half, however he compounded issues within the navy commissions that the Bush administration had invented within the wake of the 9/11 assaults to attempt folks captured within the “warfare on terror.” Now all the issues at Guantánamo are once more President Donald Trump’s.
When Biden took workplace in 2021, there have been 40 prisoners. Right now there are 15, the bottom quantity because the first 20 Muslim men and boys captured in Afghanistan had been airlifted to the bottom on Jan. 11, 2002.
Biden left Trump 4 folks the U.S. is not going to launch but in addition can’t placed on trial – the so-called “forever prisoners.” He additionally left intact the troubled military commissions system, with three pending legal circumstances towards a complete of six detainees.
In December 2021, former chief navy protection legal professional Brig. Gen. John Baker testified before the Senate Judiciary Committee: “It’s too late within the course of for the present navy commissions to do justice for anybody. One of the best that may be hoped for at this level … is to convey this sordid chapter of American historical past to an finish.” Baker made clear that the one viable possibility is to resolve the circumstances with plea bargains for the defendants.
An opportunity to make progress
There are three circumstances that haven’t but gone to trial – the 9/11 case with 4 defendants going through prices for his or her connections with the assaults, the USS Cole bombing in October 2000 with one defendant and the Bali bombing in October 2002 with one defendant.
The 9/11 and USS Cole circumstances have been caught within the pretrial section since Biden was Barack Obama’s vp. In the summertime of 2024, a breakthrough within the 9/11 case appeared imminent: Prosecutors and protection attorneys for 3 of the 4 defendants reportedly reached plea-bargain agreements. Khalid Sheikh Mohammad – the alleged “mastermind” of the assaults – Walid bin Attash and Mustafa Hawsawi agreed to plead responsible and settle for life sentences in trade for the federal government taking the demise penalty off the desk. There was no deal for the fourth 9/11 defendant, Ammar al-Baluchi.
The offers had been accredited on July 31 by the highest navy officer overseeing the Guantánamo commissions, retired Brig. Gen. Susan Escallier. However two days later, Biden’s protection secretary, Lloyd Austin, stepped into the method and overrode Escallier – whom he had appointed. Austin introduced that the plea deals were revoked.
The decide, Air Pressure Col. Matthew McCall, determined to schedule plea hearings for early January. However after some authorized back-and-forth that pressured a keep, he needed to cancel them. Biden left the case towards three 9/11 defendants in limbo.
AP Photo
Witness to the transition
In mid-January 2025, I made my sixteenth reporting journey to Guantánamo. I got here for closing arguments on a movement within the 9/11 case that seeks to suppress statements that Ammar al-Baluchi made to the FBI in January 2007. That was 4 months after he and 13 others had been transferred to Guantánamo from CIA black sites the place they had been held for years. The litigation to suppress these statements began in 2019.
In Chapter 10 of my e book, “The War in Court: Inside the Long Fight against Torture,” I element how the litigation on this suppression movement made public beforehand unknown particulars and under-acknowledged horrors of the CIA’s rendition, detention and interrogation program.
These closing arguments had been the fruits of six years of litigation on the important thing query within the 9/11 case: Does torture matter within the pursuit of justice within the navy commissions?
Copyright Abu Zubaydah 2019. Licensed by Professor Mark Denbeaux, Seton Corridor Regulation Faculty
Can Guantánamo be closed?
Of the 780 people ever detained at Guantánamo, 540 had been launched throughout the presidency of George W. Bush, who established the detention facility. Obama, who signed an govt order on his second day in workplace pledging to close Guantánamo inside a yr, launched 200.
In his first time period, Trump pledged to keep the facility open. The one man to go away Guantánamo throughout Trump’s first time period was Ahmed al-Darbi, who was repatriated to Saudi Arabia in 2018 to serve out the rest of his sentence from a 2014 plea discount settlement.
When Biden took workplace, he stated that he supported shutting down the military prison at Guantánamo. Within the early years of his presidency, there was a slow stream of transfers, principally individuals who had been cleared for launch way back and had been freed.
In Biden’s final months, the tempo of transfers quickened. In December 2024, a Kenyan detainee, two Malaysian members of al-Qaida who had pled responsible the earlier January, and a Tunisian man who had been in Guantánamo because the day the power was opened had been all repatriated to their international locations of origin and freed. In January 2024, 11 Yemenis were transported from the prison to Oman to be resettled.
15 males left behind
The Biden administration had additionally deliberate to repatriate a severely disabled Iraqi detainee, Abd al-Hadi al-Iraqi, to serve out his plea-bargained sentence in a Baghdad jail. However a federal decide blocked that transfer, ruling that al-Iraqi wouldn’t get crucial medical remedy in Iraq and could be topic to abuse there.
Al-Iraqi is likely one of the 15 that Biden left behind. Three of them – a Libyan, a Somali and a stateless Rohingya – have long been cleared for release. Their persevering with detention with out prices highlights a key ingredient of the Guantánamo drawback: Nobody might be launched except the U.S. authorities finds one other nation keen to just accept them.
One of many remaining detainees, Ali Bahlul, is serving a life sentence for conspiracy to commit warfare crimes. Six others, together with the 4 9/11 defendants, are awaiting their trials.
There are additionally 4 detainees whom the federal government refuses to switch however can’t placed on trial for lack of proof.
U.S. Central Command via AP
These so-called “perpetually prisoners” embrace Abu Zubaydah, a Saudi-born man of Palestinian descent who was taken into CIA custody in 2002 and was used because the guinea pig for the CIA torture program. The federal government way back conceded that Abu Zubaydah was not a top leader of al-Qaida – the truth is he was not even a member. However he is not going to be launched as a result of he is aware of how he was handled by the CIA, and that treatment remains highly classified.
The most recent perpetually prisoner is likely one of the authentic 9/11 defendants, Ramzi bin al-Shibh; in September 2023, he was declared mentally incompetent to stand trial. Now he’s uncharged, unreleased and untreated for his psychological maladies that had been caused by the torture he endured in CIA black websites.
The ‘Struggle on Terror’ isn’t over
When Biden pulled U.S. troops out of Afghanistan in August 2021, he claimed to have ended America’s longest warfare – and repeated this declare in a January 2025 speech. However the Guantánamo jail stays open, and so long as it’s, the “warfare on terror,” which first put U.S. troops in Afghanistan in 2001, isn’t over.
How Trump will take care of Guantánamo is an open query. If he focuses on the death penalty, he’ll press forward with navy fee trials like his predecessors, hoping for unanimous responsible verdicts and demise sentences. If he prioritizes slicing wasteful authorities spending, he’ll launch extra detainees and permit the three plea discount agreements to enter impact.
Nobody I spoke to throughout my final journey was keen to foretell what a second Trump time period would possibly bode for Guantánamo – besides that it gained’t be closed.
