Joe Biden Won’t Close Guantanamo Bay, But He Should
The prison has become a national embarrassment, trapped in time, a relic of a bygone madness. The new president should act.
There’s been buzz this week as to the possibility of Joe Biden closing the Guantanamo Bay prison, but color me skeptical. It’s true that Biden said on the campaign trail that he supports shuttering Gitmo. It’s also true that at least one of the detention center’s camps is essentially falling apart, flooding with sewage, power flickering on and off—which would give him the perfect pretext. Still, Biden will enter office facing a pandemic, an economic downturn, and civil unrest. And if Barack Obama, the constitutional law professor, couldn’t at last pull the plug on Gitmo, is the Senate’s former Irish cop really going to do any better?
Again, color me skeptical.
There are currently 40 prisoners remaining at America’s most notorious prison. Of those, nine have either been charged with or convicted of war crimes, while six have been approved for release but stuck in limbo thanks to Donald Trump’s inaction. Biden could presumably take immediate action to transfer the six to other countries, though that might prove more difficult than it seems. Potential host nations can prove reluctant, and the Pentagon doesn’t like to give them much information on detainees, lest it expose its own culpability in indefinite detentions.
Then there are the other 25 inmates, not charged with any crime but deemed too dangerous by the military to discharge. On rare occasion, one of these men will be approved for release by Guantanamo’s Periodic Review Board, a kind of Gitmo parole board. This happened just last week to Said Salih Said Nashir, a Yemeni man and Gitmo “forever prisoner” who had been held there for more than 18 years (you thought your Christmas was shaping up well). But for most of these men, that’s too much to hope for. They remain stranded in legal limbo, beyond both national and international law, on the part of the map with the squiggly waves that reads “Monsters Be Here.”
Why can’t these men receive justice? Technically those at Guantanamo Bay are subject to military commissions, which were established in 2009 after the Supreme Court ruled a year prior that the tribunals in place at the time were unconstitutional because they deprived detainees of habeas corpus. Yet there’s a backstop in this allegedly more just system, as Julian Borger reports at The Guardian:
The military commission system has been an abject failure in delivering justice. The five defendants accused of playing a role in the 9/11 attacks, including their alleged mastermind, Khalid Sheikh Mohammed, are still in pre-trial hearings more than 12 years after being charged. The process is primarily stuck on the admissibility of testimony the defendants provided after being tortured at CIA black sites.
Ain’t that grand? The United States tortures inmates at illegal prisons overseas. The unreliable information they obtain is then used to…keep inmates trapped in another illegal prison overseas! Speaking of torture, the FBI back in 2004 investigated whether anyone employed by the Bureau had witnessed any “aggressive mistreatment” of detainees at Gitmo. Nine personnel admitted that they had, detailing instances of prisoners being threatened with dogs and forced to stand in uncomfortable positions until they wetted and soiled themselves. (Thankfully the military later clarified that it didn’t consider any of this to be torture.)
Such is the miscarriage of justice—better call it an abortion, as Christopher Hitchens used to say—that is Guantanamo Bay. No less a sandals-wearing peacenik than George W. Bush began to wind down the prison, transferring 500 prisoners away from Gitmo out of a total population of 780. Barack Obama continued the releases and signed an executive order during the first week of his presidency calling for Gitmo to be closed. Alas he ran into snags: judicial complications, difficulties resettling the inmates, resistance from Republicans in Congress. Then came Donald Trump, who promised of Gitmo that he would “load it up with some bad dudes,” the Bill and Ted’s Excellent Adventure approach to extrajudicial detainments. Instead he did nothing and the prison remained in stasis for another four years.
Now enter Joe Biden. The arguments for closing Gitmo have been made so many times they almost don’t seem worth repeating: our regular justice system can handle the trials; our regular prison system can handle the convicted; no one has ever escaped from a federal supermax prison including El Chapo; how can we chide Bashar al-Assad for vanishing people into prisons indefinitely when we do the same thing? Dick Cheney’s Heffalumps-and-Woozles trips to the war on terror “dark side” notwithstanding, there is no good reason to keep Gitmo open. If Joe Biden wants to restore the American dream, he should start by lancing the country’s most gangrenous sore.