Since Joe Biden became president five months ago, there have been numerous high-profile calls for him to fulfill a promise that President Obama failed to fulfill (when Biden was vice president) and that Donald Trump had no interest in whatsoever; namely, closing the “war on terror” prison at Guantánamo Bay.
A week after President Biden’s inauguration, 111 organizations, including Close Guantánamo, sent a letter to the new president urging him to close the prison, around the same time that seven former prisoners — all authors — wrote an open letter to Biden, urging the prison’s closure, which was published in the New York Review of Books. Other calls for the prison have come from Bill Clinton advisor Anthony Lake and our co-founder, the attorney Tom Wilner, from Lee Wolosky, former Special Envoy for Guantánamo Closure under Barack Obama, and from former CIA analyst Gail Helt.
The most seismic shift, politically, came in April when 24 Senators wrote a letter to the president, not only urging him to close the prison, but also providing details of how that can be achieved — through the appointment of a senior White House official to oversee the closure process, and also though the re-establishment of the Office of the Special Envoy for Guantánamo Closure at the State Department, established by Obama but shut down under Trump, which was responsible for “identifying transfer countries and negotiating transfer agreements.”
Crucially, the Senators noted that, “Once re-appointed, the Envoy should immediately begin the work of repatriating or resettling the six men who are already cleared for transfer [now eleven men, after Periodic Review Boards approved three more men for release last month, and two more today], as well as preparing for the transfer of any remaining detainees who will not be charged with crimes.”
This latter point is particularly significant. 40 men are still held at Guantánamo, and with just 12 of them facing trials in the military commission trial process — or having already gone through that process — and, with eleven men approved for release, that leaves 17 others who, over the years, have been appropriately described as “forever prisoners.”
Shamefully, the legal limbo of the “forever prisoners” — held indefinitely without charge or trial, whose cases are administratively reviewed every few years by the non-legally binding Periodic Review Boards briefly referred to above — has, in some cases, been ongoing for 13 unforgivably long years. When Obama took office, he appointed a high-level review process, the Guantánamo Review Task Force, to assess what should happen to the 240 men he inherited from George W. Bush. The Task Force recommended 156 men for release (all but three of whom have been released), while also recommending 36 for prosecution, and 48 for ongoing imprisonment without charge or trial, on the basis that they were considered too dangerous to release, but that insufficient evidence existed to put them on trial.
Obama recognized that further reviews of these men’s cases would be required, to avoid allegations that he was arbitrarily holding some men at Guantánamo forever, and his solution finally emerged in 2013 — the Periodic Review Boards, a parole-type review process designed to asses whether, through a combination of contrition on the part of the prisoners, and plausible plans for a peaceful life after Guantánamo, it was safe to recommend their release. By the time the PRBs started, in November 2014, the credibility of the military commissions was close to collapse, after several appeals established that the men in question had been convicted for non-existent war crimes invented by Congress, and so some of the 36 men initially recommended for prosecution were also made eligible for the PRBs.
64 men subsequently went through the process in the last two years of Obama’s presidency, with 38 approved for release, all but two of whom were released before he left office. Under Trump, the PRBs failed to recommend a single prisoner for release until just before he left office (just one Yemeni), and now, as noted above, Biden’s PRBs have approved another five men for release.
So what of the other 17? Now that 24 Senators have recognized that it is intolerable to keep holding men indefinitely without charge or trial on the basis of a purely administrative process, it is to be hoped that they too will be approved for release, and this demand is central to a recently published op-ed in the Nation by retired Rear Admirals Donald J. Guter and John Hutson.
Adms. Guter and Hudson take as their starting point President Biden’s announcement that “all US and allied troops will be withdrawn from Afghanistan by September 11, 2021,” explaining that, “The ground war in Afghanistan is therefore now ending and, with the end of that war, ends the justification for continuing to detain the men captured for allegedly fighting against us in that war.”
They proceed to point out that, as a result, all the men still held at Guantánamo who have not been “charged with terrorism-related crimes” must be freed — 28 men in total; the eleven already approved for release, and the 17 “forever prisoners.”
As they also state, “these 28 men are not accused of participating or assisting in the 9/11 attacks or of engaging in or supporting any other acts of terrorism. Rather, they are detained as ‘law-of-war’ detainees, on the assertion that they participated in or supported military forces fighting against the United States and our allies in Afghanistan almost 20 years ago.”
In some cases, this is undoubtedly true, and I hope very much to hear, over the coming months, that the “forever prisoners” held “as ‘law-of-war’ detainees,” in connection with military activities in Afghanistan dating back to October 2001, when the US-led invasion began, will be approved for release.
However, one of the long-standing problems with Guantánamo has been the way in which the US government has persistently sought to portray insignificant foot soldiers as terrorists, because the men in question trained at an allegedly al-Qaeda-affiliated training camp, or stayed in an allegedly al-Qaeda-affiliated guest house, and while this fundamentally quite cynical position should be jettisoned, it is not yet clear that it will be. In the case of Asadullah Haroon Gul, an Afghan who played some sort of role in Hezb-i-Islami Gulbuddin (HIG), an al-Qaeda-affiliated Afghan group that resisted the US occupation, the Justice Department, under Biden, is challenging his demand to be released because of the imminent end to the US war in Afghanistan. In Gul’s case, this is particularly shameful, because the leader of the group in question, Gulbuddin Hekmatyar, reached a peace deal with the Afghan government in 2016, and now serves on Afghanistan’s High Council for National Reconciliation.
As I explained in a recent article, “since the peace deal, hundreds of HIG members have been freed from Afghan prisons, and a former HIG prisoner, released from Guantánamo to the UAE in 2016, was repatriated as part of the ongoing reconciliation between Hekmatyar and the Afghan government. In addition, earlier this year, the Afghan government submitted an amicus brief on Gul’s behalf, calling for his release — the first time that a foreign government had petitioned a US court for the release of one of its citizens.”
At a court hearing in May, however, prosecutor Stephen McCoy Elliott claimed that, although the government “does not take lightly the fact that [Gul] has been detained more than 10 years,” we “have been and remain at war with al-Qaeda,” and that, as a result, his “detention, while lengthy, remains justified,” As I explained at the time, the position taken by the Justice Department “thoroughly undermin[ed] the HIG peace deal, and indicat[ed] that, at Guantánamo, as is so often the case, the basis for prisoners’ continued imprisonment works to its own horrible logic, which has nothing to do with external reality.”
Nevertheless, I would be surprised if — on a political and diplomatic basis, if not legally — the Biden administration will continue to defend Gul’s ongoing imprisonment, and I expect the same to be true of a number of other prisoners, mainly from Gulf countries, who were foot soldiers unconnected to any kind of command structure, and whose ongoing imprisonment is based entirely on the perceived threat that they have posed since their arrival at Guantánamo, where they have resisted the injustice of that dreadful prison through, for example, hunger strikes, an ability to be a leader to others, and their unwillingness to be “broken.”
More problematical, for the Biden administration, are those who seem to have held some kind of position within al-Qaeda or affiliated organizations — which the US, over the years, has tended to describe as “mid-level” roles — as well as notable outliers like Abu Zubaydah, the first official victim of the post-9/11 torture program, who had a role at a training camp that was not aligned with al-Qaeda, and whose role as any kind of “terrorist” has been horribly over-inflated.
If we are to be brutally honest, some of these men, if prosecuted, might well have received sentences of less severity than the long years they have already endured at Guantánamo, but even more significantly, for justice to be done, and to be seen to be done, and for Guantánamo to finally be closed, the administration — and the entire US establishment — has to recognize, as the Senators so admirably insisted, that ongoing imprisonment without charge or trial is no longer acceptable as the 20th anniversary of the 9/11 attacks and the 20th anniversary of the opening of Guantánamo approach, and, if these “forever prisoners” are not to be charged with credible crimes, they must indeed be released.
I’m cross-posting below the retired Admirals’ op-ed, as I believe it makes a significant contribution to the steadily accumulating weight of opinion regarding the inescapable necessity of closing Guantánamo once and for all, and I hope that you find both it — and the commentary and assessment above — to be helpful.
As the War Ends, So Too Must the Detention of Guantánamo Bay Prisoners Detained in Connection to It
By Rear Admiral (Ret.) Donald J. Guter and Rear Admiral (Ret.) John Hutson, The Nation, May 31, 2021
There are 28 men still detained at Guantánamo Bay in connection with the war in Afghanistan who must be released.
The president has now announced that all US and allied troops will be withdrawn from Afghanistan by September 11, 2021, the 20th anniversary of the 9/11 attacks. The ground war in Afghanistan is therefore now ending and, with the end of that war, ends the justification for continuing to detain the men captured for allegedly fighting against us in that war.
Twenty-eight of the men still detained at the Guantánamo Bay detention camp fall into that category. Unlike the others detained at Guantánamo who are charged with terrorism-related crimes, these 28 men are not accused of participating or assisting in the 9/11 attacks or of engaging in or supporting any other acts of terrorism. Rather, they are detained as “law-of-war” detainees, on the assertion that they participated in or supported military forces fighting against the United States and our allies in Afghanistan almost 20 years ago.
The Supreme Court affirmed the authority to detain these men in the Hamdi v. Rumsfeld case, decided in 2004. In her plurality opinion in that case, Justice Sandra Day O’Connor found that, although the congressionally passed 2001 Authorization for the Use of Military Force (AUMF) contains no explicit authorization to detain, the detention of individuals “who fought against the United States in Afghanistan … for the duration of the particular conflict in which they were captured, is … an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Relying on long-standing international law-of-war principles, Justice O’Connor pointed out that the purpose of the detentions is to prevent the individuals from returning to the battlefield and that “‘[c]aptivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’”
The opinion recognized that the current conflict was unlikely to end with a formal peace treaty, but emphasized that the detentions could not last forever. The detention authority extends only “for the duration of the particular conflict in which [the individuals] were captured,” and “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” Thus, “the detaining country must release and repatriate [the detained individuals] ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences.’”
The opinion found that continued detention of individuals who fought against the United States in Afghanistan is authorized “if the record establishes that United States troops are still involved in active combat in Afghanistan.”
With the withdrawal of United States troops from active combat in Afghanistan, that authorization is now ending, and the 28 men at Guantánamo not charged criminally as terrorists but detained only as combatants in the military hostilities in Afghanistan should be allowed to return home.
That result is not only compelled by law; it is right and just. Afghanistan has been our nation’s longest war and, as a result, these men have been held in law-of-war detention for almost two decades, longer than any others in US history. And had they been charged and convicted of providing material support for terrorism, rather than simply of fighting in Afghanistan, they would in all likelihood have already served their sentences and been released. Perversely, these men are being treated worse than those we have actually charged as terrorists.
Repatriating these men would be an important first step in closing the Guantánamo prison. That prison continues to be used effectively by terrorists to recruit followers to their cause. It is also enormously expensive, costing well over half a billion dollars a year to operate. Closing the prison would enhance our security and relieve taxpayers of that wasteful burden. As a first step, these 28 men not charged with participating in or supporting terrorist activity should now be transferred home.
- Rear Admiral (Ret.) Donald J. Guter was Judge Advocate General of the US Navy from 2000 to 2002 and is president and dean emeritus of South Texas College of Law.
- Rear Admiral (Ret.) John Hutson was Judge Advocate General of the US Navy from 1997 to 2000 and was president and dean of the University of New Hampshire School of Law from July 2000 through January 2011
I wrote the above article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.