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.”
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