President George W. Bush opened the detention camp at U.S. Naval Station Guantánamo Bay on January 11, 2002, during the so-called “Global War on Terror,” to hold and interrogate alleged terrorism suspects. Guantánamo was chosen in the hope that detainees there would be beyond the reach of U.S. courts—as one Bush administration official put it, because Guantánamo was “the legal equivalent of outer space.” Guantánamo has since held 779 detainees, all of them Muslim, and all but a handful without charge or trial. Nine detainees have died there, and thirty remain captive today. Sixteen of these men have been recommended for transfer out of Guantánamo by all U.S. national security agencies, and yet continue to languish in indefinite detention.
Many of the remaining men were tortured by the United States, some formerly disappeared at “black sites” before being sent to Guantánamo. All of them have been exposed to the physical and psychological trauma from prolonged indefinite detention.
At the cost of $540 million per year, Guantánamo is the most expensive prison in the world.
This is why we’re calling on President Biden to stick to his promise to close Guantánamo.“
The two most critical steps President Biden must take to close Guantanamo are: 1) Transfer detainees who have not been or will not be charged with a crime – including by ordering the Department of Justice to not contest cases of men challenging their detention in U.S. federal court; 2) end the failed military commissions.
The President does not need Congress to take either of these steps and to close Guantánamo.“
Transfers of detainees from Guantánamo are a multi-step process: For most detainees, the first step is: to be cleared for transfer through an administrative review process called the Periodic Review Board (PRB). Though it is important to note that this process is not required by law—the President can transfer anyone out of Guantanamo that he wished to transfer, at any time, as long as (in most cases) he notifies congress in advance. U.S. federal courts can also require that a detainee be transferred, for any number of reasons, and have done so in the past.
Second, the administration must identify a transfer country and negotiate a transfer agreement. Third, as noted above, in most cases the administration must notify Congress of the transfer 30 days in advance.
The PRB, established in March 2011 by executive order, comprises senior officials from Defense, Homeland Security, Justice, State, the Joint Staff, and the Office of the Director of National Intelligence. Its primary role is to assess “whether law of war detention remains necessary to protect against a continuing significant threat to the security of the United States.”
The PRB conducts comprehensive reviews of detainees every three years, excluding detainees charged with a crime, court-ordered releases, or those who have completed their sentences. The PRB operates by consensus, meaning that when it recommends a detainee for transfer, that is a unanimous decision by all executive branch agencies with a significant national security function.
President Bush established the military commissions in 2001 to try non-citizen terrorism suspects. Since 2002, 32 detainees have been charged in the commissions. Twelve cases were dismissed. There have been nine convictions, most of which were overturned in whole or in part on appeal by U.S. federal courts. There are three ongoing cases, including the prosecution of those alleged to be most responsible for 9/11, which after two decades, has not gone to trial.
The commissions violate international fair trial standards and have failed to achieve justice.”
Critics, including the Bush administration’s Solicitor General, Ted Olson, cite three main reasons for that failure: an untested system (the commissions were built out of whole cloth), the impact of torture on the prosecutions (the government’s best evidence in these cases was obtained through torture, and so should not be admissible in court), and efforts to maintain secrecy about US torture (the government does not want to disclose more information about the defendants’ torture, but the defense is entitled to that information).
The commissions have suffered a host of embarrassing and unethical breaches, including bugging defense attorney-client interview rooms, using an interpreter in court who was previously present during one of the defendant’s torture at a CIA black site, and years of rulings in cases being overturned because judges had obvious conflicts on interests in their cases.
Guantánamo’s costs are overwhelming: $540 million per year; increasingly severe health impacts on remaining detainees; ongoing damage to the rule of law; U.S. reputational harm; and a source of charges of hypocrisy from the likes of Russia and China.
In June 2023, Fionnuala Ní Aoláin, the former United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and the first UN independent expert allowed to conduct a meaningful visit to Guantánamo, found that current conditions at Guantánamo amount to “ongoing cruel, inhuman, and degrading treatment…and may also meet the legal threshold for torture.”
Calls for closing Guantánamo have ranged from family members of 9/11 victims to former detainees; President Bush to President Obama; the military to medical professionals; international jurists to local activists; to the late Senator John McCain.”
Among the former government officials who support closure are five Defense Secretaries, eight Secretaries of State, six national Security Advisors, five Chairmen of the Joint Chiefs, and dozens of retired generals and admirals. On January 11, 2023, a diverse group of over 150 non-governmental organizations from across the world wrote to President Joe Biden urging him to close Guantánamo.