Biden administration quietly steps up effort to close Guantanamo

The U.S. has held alleged foreign terrorists at Guantanamo Bay Naval Base in Cuba since 2002.  (Photo: Wikimedia Commons)
The U.S. has held alleged foreign terrorists at Guantanamo Bay Naval Base in Cuba since 2002.  (Photo: Wikimedia Commons)

Summary

Special representative named to oversee efforts to transfer detainees out of military facility in Cuba

WASHINGTON : The Biden administration is revamping its effort to close the Guantanamo Bay prison, for the first time appointing a senior diplomat to oversee detainee transfers and signaling it won’t interfere with plea negotiations that could resolve the long-stalled prosecution of alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants.

After taking a low-profile approach to the matter for the first year of his term to avoid political controversy, President Biden is moving closer to fulfilling a campaign promise to shut the facility, people familiar with the matter said.

The facility at the U.S. Navy base in Cuba was set up in January 2002 to house alleged foreign terrorists captured overseas. Guantanamo has held nearly 800 men since then; only 36 detainees remain at the facility today, after hundreds were returned home or resettled in third countries by the George W. Bush and Barack Obama administrations. The newest detainee arrived in 2008; some of the men have been held for two decades.

Nine of the remaining detainees are defendants in military commission proceedings, including five accused of conspiracy, murder in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism in the Sept. 11 case.

Abd al-Rahim al-Nashiri has been charged with perfidy, murder in violation of the law of war, terrorism, conspiracy, and hazarding a vessel in planning attacks on three vessels, including the 2000 bombing of the USS Cole that killed 17 sailors.

Three other detainees have been convicted by military commissions, including two via plea bargains. One, Abd al-Hadi al Iraqi, pleaded guilty to conspiracy and violation of the law of war and is awaiting sentencing. A second, Ali Hamza al-Bahlul, is serving a life term for providing material support for terrorism, solicitation and conspiracy. A third, Majid Khan, made a deal with prosecutors to plead guilty to conspiracy, murder in violation of the law of war, attempted murder in violation of the law of war and spying, and became a government cooperator and completed his sentence in March.

Four detainees are being held indefinitely without charge because authorities consider them a security risk. Twenty others have been cleared for transfer by a review board including defense, intelligence and law-enforcement officials, but moving the men out has proven harder than the Biden team expected, the people said.

Some critics of the Biden administration’s action on closing the prison, both within and outside the administration, say newer crises have been occupying the national security staff, and the potential for being branded soft-on-terrorism has slowed the administration’s efforts, they say.

The White House is seeking to avoid the kind of backlash that stymied Mr. Obama’s plans after his high-profile calls to shut the prison down. Congress responded to the Obama administration’s effort to close the prison in 2010 by passing a ban on the transfer of Guantanamo detainees to the U.S.

“The administration doesn’t want to look like it’s soft on terrorism and is awaiting a political consensus," said Harvey Rishikof, a former head of the military-commissions apparatus who helped draft a recent report on closing the facility from the University of Pennsylvania’s Center for Ethics and the Rule of Law.

Mr. Biden’s new special representative position, the critics also say, lacks the clout similar offices had under the Obama administration, where Guantanamo envoys had direct access to the secretary of state. The new special representative, Tina Kaidanow, a former ambassador-at-large for counterterrorism, has been placed further down in the State Department hierarchy, they say.

A State Department spokesman said Ms. Kaidanow was unavailable for comment.

The Defense Department is moving ahead with a Donald Trump-era project, building a third courtroom at Guantanamo Bay at a cost of $4 million, even though no additional trials are expected at the naval base.

A military commissions spokesman said “an extensive expansion" of Guantanamo’s trial facilities, including a new courtroom, would allow military judges to hold “simultaneous multi-defendant, lengthy trials."

Twenty-one years after the attacks of Sept. 11, 2001—and a year after the U.S. withdrew from Afghanistan—critics are pushing the administration to move faster in shutting down the offshore prison.

“Holding people without charge or trial for years on end cannot be reconciled with the values we espouse as a nation, and has deprived the victims of 9/11 and their families of any semblance of justice or closure," said Senate Judiciary Committee Chairman Dick Durbin (D., Ill.).

Some Republican lawmakers, meanwhile, have opposed any actions that could lead to detainees leaving Guantanamo. “The Biden administration wants to free more terrorists, and we know, to an absolute, metaphysical certainty, the results of that will be more Americans murdered," Sen. Ted Cruz (R., Texas) said in December at a Judiciary Committee hearing on Guantanamo.

The Penn research center released a 197-page report Monday providing a road map to closing the facility, while proposing alternate approaches to protect national security. Drafted by national-security experts, including former Guantanamo military prosecutors and defense lawyers, the report recommends abolishing the military commissions, created to try enemy prisoners without affording them constitutional rights, and resolving the 10 pending commission trials through plea bargains that could lead to life imprisonment for some defendants rather than execution.

It advocates a more robust campaign to repatriate or resettle abroad detainees and a repeal of congressional restrictions on transferring detainees who are serving sentences in Guantanamo to prisons in U.S. territory.

The facility in Cuba costs $540 million a year to operate, according to the Penn study, including about $100 million for military commissions. That comes to $15 million a detainee, compared with about $78,000 a year for an inmate at the U.S. Penitentiary at Florence, Colo., where terrorists and other high-security convicts are held.

The Bush administration transferred more than 500 detainees from Guantanamo before 2009; the Obama administration transferred nearly 200 more. Only one transfer, which had been negotiated during the Obama era, took place during the Trump administration. Forty detainees remained at Guantanamo when Mr. Biden took office.

Mr. Biden has long called for the facility to close, including during his 2020 presidential campaign. Still, Mr. Biden left in place Mr. Trump’s 2018 executive order revoking Mr. Obama’s 2009 directive to close the facility. The White House also initially didn’t re-establish the Guantanamo envoy position. When Mr. Durbin held a Judiciary Committee hearing on Guantanamo in December, the administration declined to send anyone to explain its position.

The Sept. 11 prosecution has been bogged down for years over the cruel methods Central Intelligence Agency interrogators used before defendants were charged. In 2017, Mr. Rishikof, then-commissions chief, began negotiations with the Sept. 11 defendants that could have led to guilty pleas if executions were off the table.

The Trump administration removed Mr. Rishikof from his post for what it said were unrelated reasons. Earlier this year, the Biden administration renewed those negotiations and the White House said it wouldn’t interfere.

“Obviously, if this were easy—four presidents, 20 years—we would have figured this out," Sen. John Cornyn (R., Texas) said at the December hearing.

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