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Opinions | Guantanamo’s prison has stumped three presidents. Biden can finally close it.

The Washington Post logo The Washington Post 1/14/2022 Ramzi Kassem
There are 39 inmates left at the military prison at the U.S. Naval Station in Guantánamo Bay, Cuba. © Alex Brandon/AP There are 39 inmates left at the military prison at the U.S. Naval Station in Guantánamo Bay, Cuba.

Twenty years ago this month, the first plane full of prisoners touched down at the U.S. Naval Station at Guantánamo Bay, Cuba. A widely circulated image showed the first 20 prisoners — Muslim men and boys, almost all of them brown- and black-skinned — kneeling on the gravel under the tropical sun in orange jumpsuits, shackles, earmuffs and blackout goggles. The picture signaled to the home audience that America was getting payback for the events of Sept. 11, 2001, and it sent a chilling message to those not “with us,” to quote President George W. Bush — those whom he deemed to be “with the terrorists.”

Two decades on, the semantic and symbolic value of Guantánamo has morphed considerably. Few public figures still proclaim the falsehood that the 779 prisoners held there over the years were “the worst of the worst.” The prison is forever tainted by confirmed accounts of torture. It’s no surprise, then, that multiple presidents have expressed the intention to close it — yet none have followed through.

I hope it will be different this time, and there are reasons to be optimistic. President Biden, who said on the campaign trail that he wanted to shutter the prison, has repatriated one detainee while quietly clearing more than a dozen of the 39 others for release through the interagency Periodic Review Board. These clearances are significant because, even though they don’t guarantee release, they flow from discussions and decisions at senior levels of the federal agencies with a stake in national security affairs, including the Departments of Defense, State, Justice and Homeland Security. Under the Trump administration, that same body issued its decisions sporadically and almost always in favor of continued detention.

The United States has long sought to exploit Guantánamo’s legal contradictions

But at the rate of one prisoner transfer per year, Biden won’t come close to shutting Guantánamo, even if he wins a second term. If he allows higher policy priorities such as the pandemic and the economy, or the fear of backlash in the upcoming midterm elections, to distract him from this important objective, he could fail just as his predecessors did, and neither our country nor the rest of the world can afford to let that happen.

Bush released the largest number of prisoners, about 540, and by the end of his second term declared his wish to shutter the prison he had opened. President Barack Obama campaigned on a promise to shut Guantánamo and came second in the number of prisoners repatriated or resettled, with about 200. Donald Trump vowed not only to keep the prison open but to expand it, though, like his predecessor, he failed to fulfill his Guantánamo promise and even repatriated one prisoner, Ahmed al-Darbi, to serve the rest of his sentence in Saudi Arabia (I represented Darbi with my law students and co-counsel).

Presidents have failed to release even some prisoners whom the government has formally declared fit for repatriation or resettlement. Many men have languished for years at Guantánamo, clearance papers in hand, including when Obama was in office. So far, the Biden administration hasn’t moved visibly to convert the clearances into repatriations or resettlements to countries where the men can safely try to rebuild their lives. Those clearances risk remaining mere ink on paper, and Biden’s promise to end the ignominy of Guantánamo could prove hollow.

I went to prison for disclosing the CIA’s torture. Gina Haspel helped cover it up.

It is possible that Biden learned valuable lessons from Obama’s doomed attempt to close the prison. Biden’s former boss arguably blundered by kicking off his Guantánamo closure effort with a splashy executive order signed on his second full day in office, setting a deadline of one year to shut the facility. Obama’s approach elevated the issue’s profile, painting a target on his own back, and gave the political opposition ample time to mobilize and defeat his policy.

Before Obama’s election, there was a consensus that closing the prison was desirable, but afterward, a Republican-led campaign, supported by some Democrats, gained momentum, blocking major steps toward closure. This included pressuring the administration to abandon its plan — which it had also unwisely telegraphed — to move the trial of accused 9/11 plotters from the dysfunctional military commissions at Guantánamo to federal court in New York. And Obama was focused on other priorities, the Affordable Care Act chief among them, limiting the amount of political capital he was willing to spend on Guantánamo. By 2011, federal legislation prohibited the transfer of any Guantánamo prisoner to the United States for any purpose, including trial, and restricted Obama’s ability to transfer detainees anywhere else (Obama meekly protested in a signing statement accompanying the legislation that Congress was potentially interfering with the exercise of his powers as president).

Against that backdrop, aligning without fanfare the pieces needed for closure, if indeed that has been Biden’s deliberate choice, could prove wise — provided, however, that the administration ramps up its efforts significantly and soon.

9/11 didn’t change everything. Old fights and illusions still haunted us.

After two decades of incarcerating people without charge or fair process by international standards, the U.S. government has a moral duty to ensure that former Guantánamo prisoners can reenter global society with the means and support they will undoubtedly need. This includes compensation for Guantánamo survivors who have already been repatriated or resettled. In addition to the physical and psychological scars of indefinite incarceration without charge, and of torture, these men endure stigma and unrelenting suspicion that make any semblance of a normal life in many countries seem unattainable. Close allies of the United States, such as Britain, Canada and, most recently, Lithuania, have all compensated Guantánamo survivors for the role those nations played in their mistreatment. It is high time for the United States to own its misdeeds and mistakes and follow suit — it should not let decades pass before doing the right thing, as with Japanese American incarceration, to cite but one example.

Only after the prison is no more can the world truly begin the process of dismantling Guantánamo. That is because Guantánamo today is not only a place where real people languish behind bars, their families suffering from afar — it also endures as an idea, a template, a system that has been replicated the world over. From China’s detention centers in Xinjiang holding more than 1 million Muslim Uyghurs, to camps like al-Hol in Syria, where thousands of women and children linked to the Islamic State are corralled with the acquiescence of their home countries, to mainstream presidential candidates in France campaigning for “a French Guantánamo Bay,” concepts — and prisons — like Guantánamo dot our planet.

The world is familiar with the stories of the men who have been incarcerated at Guantánamo and the torture they endured, thanks to the accounts of former prisoners; two decades of litigation; and government records, studies, human rights reports, feature films, documentaries and countless news articles. Deconstructing Guantánamo is a political, legal, scholarly and cultural project that, unfortunately, will occupy a generation or more. It is all the more imperative, therefore, for Biden to complete the first steps in that monumental undertaking by releasing prisoners, making former prisoners whole and closing the facility.

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