Twenty years ago, today, President George W. Bush began shipping Muslim men to hastily constructed wire cages at the United States naval base in Guantanamo Bay, Cuba. Over 800 would eventually be held there, most sold to the U.S. for a bounty by groups looking to profit off the U.S. invasion of Afghanistan several months earlier.

Four years later, Bush said Guantanamo should close. President Barrack Obama committed to finishing the job, and last February President Joe Biden promised the same.

So why is Guantanamo still open? The Biden White House blames Congress. It needs to take a hard look in the mirror instead.

So why is Guantanamo still open? The Biden White House blames Congress. It needs to take a hard look in the mirror instead.”

Thirty-nine men languish at Guantanamo, aging beyond their years under the weight of indefinite detention. Among them are a 73-year-old who has had three heart attacks, a wheelchair-bound 60-year-old, and many physically and psychologically debilitated torture survivors. One independent medical expert intimately familiar with Guantanamo and its medical care limitations fears that men may soon begin to die. Guantanamo officials apparently recognize this prospect, having cordoned off an empty field at the outskirts of the base and hung a sign that reads “Islamic Cemetery.”

Twenty-seven of the men have never been charged with a crime. Twelve are stuck in the hamster wheel of injustice that is the military commissions, the novel war courts that Bush created to deprive defendants of the basic rights they would be afforded in a legitimate legal system.

For all the complexity typically attributed to closing Guantanamo, doing so boils down to two steps: releasing the uncharged men, and ending the military commissions.

During her January 4 press conference, White House Press Secretary Jen Psaki claimed that laws imposed by Congress – which prohibit sending detainees to the U.S., Syria, Libya, Yemen, or Somalia – are “the major hinderance” to closure. Biden spread the same myth on the campaign trail. It isn’t true.

The Biden administration has released one man from Guantanamo, Abdul Latif Nassar, whose transfer to Morocco was negotiated during the Obama administration. More than a dozen others have been cleared for release by unanimous decision of every executive branch agency with a significant national security function (several were reported yesterday) – no doubt a positive development – but unless and until those men actually leave Guantanamo, the designation doesn’t mean all that much.

If Biden wanted to do more, he would already have rebuilt the infrastructure at the State Department, which President Donald Trump dismantled, dedicated to closing Guantanamo. And his administration would be signaling to potential transfer countries that it prioritizes providing them robust support for resettlement, financial and otherwise, over demanding draconian security measures that some countries cannot, or will not, agree to impose.

No law prohibits either of these strategies. And the administration is free to look to 97% of the world’s countries that aren’t included in the legislation about which Psaki complained to find foreign partners that might be open to resettling detainees.

As for the military commissions, nobody seriously disputes that they’ve failed. Brigadier General John Baker, the commissions’ chief defense counsel, recently told Congress why: “[t]he United States chose to secretly detain and torture the men it now seeks to punish.” “From the beginning, justice was an afterthought.”

The commissions have ridden roughshod over defendants’ rights and embarrassed themselves time and again. In almost 20 years, they have produced a single final conviction. According to General Baker, the case against the men alleged to be most responsible for the September 11, 2001 attacks is further away from trial today than it was when he assumed his post in 2015.

The only way the administration might salvage some measure of justice from the mess the military commissions have become is by pursuing plea agreements with the defendants. Pleas aren’t unusual in death penalty cases, and in this context the plea negotiation process offers the best chance at both serving victim family members’ needs, and imposing a degree of accountability for the defendants’ torture. What’s more, pleas could be done either in the commissions or in federal court via videoconference from Guantanamo.

9/11 victim family members, defense counsel, the Marine Corps general who built Guantanamo, and a variety of human rights groups all support this solution. When proposed during a Senate Judiciary Committee hearing (which the administration refused to attend), no member or witness, Republican or Democrat, voiced opposition.

If the administration doesn’t pursue plea agreements, it’s a choice, and not because Congress has tied its hands.

If Biden wants to close Guantanamo, what he needs most isn’t a change in law, it’s the courage of his convictions.”

To be sure, Congress should be helping to close Guantanamo, and save for certain members it isn’t. But that doesn’t justify the White House scapegoating lawmakers for failure to take reasonable actions entirely within its own authority and control.

If Biden wants to close Guantanamo, what he needs most isn’t a change in law, it’s the courage of his convictions.

About The Author

Scott Roehm

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