Transfers Alone Won’t Close Guantanamo Bay

Legal experts say the Biden administration must fix the sluggish trial process to actually close the military prison.

President Joe Biden can transfer all eligible detainees out of Guantanamo Bay, but he won’t be able to close the military detention center without reforming the military commissions process, legal experts say. 

The Pentagon announced on Monday that it had transferred Abdul Latif Nasir from the naval station and prison complex on Cuba to Morocco, five years after a review board ruled in 2016 that he was no longer a threat to the United States. The move is the first transfer of the Biden administration, and the first since May 2018

Thirty-nine detainees remain at Guantanamo Bay. Ten are eligible for transfer, while 17 more are eligible for a periodic evaluation about whether they can be transferred, a senior administration official told reporters. 

A second senior administration official declined to say whether the U.S. intends to speed up the transfer of detainees to other nations — or even whether talks are proceeding at all.

“We’re very much focused on the...deliberate and thorough process to responsibly reduce the detainee population, and that does, indeed, include identifying locations for transfer for the detainees that have been recommended for transfer thus far,” the second official told reporters. 

But transfers alone can not empty the military detention center in Cuba. Ten of its remaining prisoners are awaiting legal action by military commissions, a slow-moving process created by the Bush administration to prosecute detainees for war crimes. 

“As long as military commissions are on their current track, I think that’s going to literally keep the detention facility open,” said Michel Paradis, a senior attorney for the Defense Department. “No one has done any serious planning to prosecute them anywhere else.”

The case against the men behind the Sept. 11, 2001, attacks, for example, began in 2008 and has still not been resolved. The routine departure of judges or staff, as well as questions about whether evidence can be used if it was obtained using torture, continue to plague the process, said Karen Greenberg, the director of Fordham University School of Law’s Center on National Security.

“The challenge to the Biden administration is, ‘Can the military commissions begin to proceed in a way that looks like they have some momentum?’” Greenberg said. “The track record of the commissions has been so incredibly slow, it’s moved backwards.”

One option is to prosecute the cases in U.S. federal court, Paradis said. But every year since at least 2010, Congress has included language in the National Defense Authorization Act to ban detainees from coming to the United States for any reason, including legal action or medical care. 

Not renewing the ban would also allow convicted detainees, of which there are currently two, to serve the rest of their sentences in prisons in the United States. Paradis also proposed that some could be transferred to prison in their home country. 

Negotiating with other nations to take in the detainees who are cleared to leave the detention center has its own difficulties, including ironing out some sort of security agreement to ensure they do not pose a threat to the United States.

For those detainees who have been cleared to transfer to other nations, some experts predict the Biden administration will still struggle to place them with allies because the people who remain at Guantanamo are some of the toughest to place. 

“Many of the remaining cases are so hard. Reducing the population through individual transfers makes the remainder problem smaller, but not very much easier,” said Matthew Waxman, a professor at Columbia University Law School. “Is the Biden administration prepared to move [Khalid Sheikh Mohammed] and other 9/11 plotters and al Qaeda leaders into the United States? If so, they might be able to close Guantanamo, but they need a solution for those high-profile cases.”

Greenberg, however, is optimistic Biden can close the detention center when others have failed, in part because he seems committed to moving the United States beyond the war on terror. Biden has already announced the American withdrawal from Afghanistan and supported the repeal of the war authorizations that allowed military action to begin two decades ago. Closing Guantanamo Bay eliminates another piece of the forever war that Biden is eager to end, Greenberg said.

“I think with the will it can definitely be accomplished and the will is absolutely there,” she said. “The idea is, let’s bring to an end those things that define the post-9/11 world….These are the real and symbolic pieces of policy that need to be sunsetted and that’s what they’re moving towards.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.