If the Guantánamo Bay detention facility were a person, it would be old enough to drink. Just over 21 years ago, U.S. authorities took the first detainees to the naval base in Cuba, stashing the suspects in a territory where, it was thought, they might be held without federal court oversight. This month, Majid Khan became the 746th detainee to be transferred out of the facility, to Belize, leaving 34 prisoners still locked up there, according to a New York Times count.
The transfer was a reminder of Gitmo’s persistence, despite three presidents’ efforts to close it, a vestige of a sad period in U.S. history. As its population dwindles, its continued existence is ever more irrational.
Establishing the prison was a terrible mistake that has proved impossible to undo. The Biden administration has gotten the country the closest it has ever been to shutting the facility, and the president can continue emptying the prison. But only to a point. Congress will have to take the last few steps to eliminate this enduring stain on the global reputation of the United States.
Created by the George W. Bush administration in the chaotic period after the Sept. 11, 2001, attacks, Guantánamo took in its last prisoner in 2008. By the end of his presidency, even Mr. Bush was persuaded to favor closing the facility, based on the moral and strategic damage it had done to the United States. In his memoir, Mr. Bush said the prison was “a propaganda tool for our enemies and a distraction for our allies.”
Though the global war on terrorism has receded from most Americans’ minds, experts say that even now Gitmo’s continued existence serves as a recruiting tool among those who mean the country harm. Across the globe, it shows up in popular media as a symbol of injustice. Its existence opens the United States to charges of hypocrisy on human rights, suggesting the nation’s promotion of freedom and democracy abroad is a cynical pretext for engaging in self-interested global interventionism. Also, it’s expensive, costing roughly $13 million per prisoner in 2019. That is well more than 100 times what it costs to incarcerate someone in a U.S.-based supermax prison.
But once prisoners are stashed at Gitmo it is hard to move them out, in part because of unreasonable domestic U.S. opposition to relocating them, which culminated in 2010 with Congress barring the transfer of Guantánamo detainees to U.S. soil. Because of this, presidents long ago stopped adding people to the prison, opting instead to have allied forces hold detainees or to try high-value prisoners in federal court.
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End of carouselAlso on the Editorial Board’s agenda
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A court in mid-December sentenced Istanbul’s popular mayor, Ekrem Imamoglu, a political rival of the president, to more than two years in prison on the charge of “insulting public figures.” If confirmed on appeal, his conviction would bar Mr. Imamoglu from seeking public office. Mr. Erdogan has a long history of suppressing critics and competition. Read our recent editorial.
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Gitmo will stop functioning eventually, if only because its inmates will die off. Nine have already died there. This is essentially the closure strategy the nation is pursuing, committing the country to perhaps decades more condemnation and shame. If preserving Guantánamo made the United States safer, there might be a credible argument to keep it open anyway. But it does not. That is true even if you accept the argument that the United States must maintain a facility to house terrorism suspects indefinitely; since the Supreme Court long ago brought the prison under the jurisdiction of American law, there is scant conceivable advantage to warehousing prisoners there rather than on the U.S. mainland.
Those who remain at Guantánamo fall into three groups. Twenty of them are detainees who a review board has determined are safe to transfer to other countries, as Mr. Khan was this month. Early on, this practice led to a substantial number returning to the battlefield in places such as Afghanistan. In recent years, the State Department has established security arrangements — such as monitoring and travel restrictions — preventing them from engaging in threatening behavior after leaving Guantánamo. The reengagement rate has plummeted. The Biden administration should move out those approved for transfer as soon as possible.
This requires sustained negotiations with countries who can be persuaded to accept former Gitmo detainees. Some go back to their countries of nationality, if U.S. authorities can make adequate security arrangements. Others, such as Mr. Khan, are sent to countries willing to take them as a humanitarian gesture — and as a favor to the United States — so long as American authorities find them homes and other essentials. The Biden administration should press forward.
Then there are 11 inmates who have been charged with or convicted of crimes, such as some of the men who perpetrated the Sept. 11 attacks. Rather than prosecuting them in federal court, the Bush administration and Congress created military commissions to try them. The commissions have failed. It has been nearly 11 years since the 9/11 defendants were arraigned, and their trial still has not begun, as the inevitable complexities of creating a brand-new, parallel legal system have taken time to work through. Rather than persisting with the commissions system, the Biden administration should seek justice in some other way.
The best alternative would be to try Guantánamo inmates in federal court. Prosecuting domestic as well as foreign terrorism suspects in federal court — including in cases against the Boston Marathon bomber, the Times Square bomber, the shoe bomber, the East Africa embassy bomber and one of the 9/11 plotters — has proved far more effective than critics had predicted. The conviction record in cases against “enemy combatants,” the class of detainee Gitmo was created to house, is near-perfect, and supermax prisons are safe places to lock them up — or, should they be sentenced to die, to execute them.
The Biden administration could also sidestep the commissions by seeking plea deals, securing admissions of guilt in return for life sentences. This would finally close the chapter on these cases. But, no matter what legal process inmates undergo, if Congress failed to lift its ban on transferring Guantánamo inmates to the United States, they would still have to serve their sentences in Gitmo.
The situation is similar with the third group of inmates in the prison, three men who have not been charged but whom the government deems too dangerous to transfer abroad. One of these men is Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida, whom the U.S. government accused of being a senior al-Qaeda leader — and tortured — in the wake of 9/11. Congress should allow them to be moved to a facility in the United States for as long as the government may lawfully hold them.
The Supreme Court has said these “law-of-war detainees” have the right to challenge their continued detention in federal court, and some have. Their challenges could get more persuasive as the United States winds down operations it began after 9/11, such as the war in Afghanistan. But that would be the case whether they were filing their habeas corpus petitions from Guantánamo Bay or the U.S. Penitentiary in Florence, Colo.
On its own, the Biden administration could get the Guantánamo Bay prison population down to 14 by transferring overseas all those approved to be moved. This would make the facility’s continued existence only more absurd, underscoring what a waste of money and credibility it has become. At that point, Congress might be persuaded to end this national embarrassment once and for all.