Almost five years ago I contributed to a Commentary to JURIST entitled, “Guantanamo: An Unnecessary Presidential Legacy,” which focused on former President Barack Obama’s unsuccessful attempt to shut down the Guantanamo prison facility because of missed opportunities, faulty decision making, internal administration opposition and ultimately partisan political division that resulted in an unnecessary presidential legacy.
I concluded in my article that it would be up to President Donald Trump and Congress to repair our reputation as a nation committed to the rule of law and to take bold action to close Guantanamo permanently and demonstrate indeed that we practice what we preach.
Fast forward to 2021. A group of United States Senators (23 Democrats and 1 Independent) sent a letter to President Biden in which they applauded his pledge to put universal rights and strengthening democracy at the center of our efforts to meet the challenges of the 21st century, and they suggested that a critical step in doing so was to permanently close the Guantanamo detention site. The reason for doing so was that it was a “symbol of lawlessness and human rights abuses,” which continued to impact our national security because it served as a propaganda tool for our enemies and hindered our counterterrorism efforts and positive relations with many of our allies.
The Senators also discussed the military tribunal process at Guantanamo which only had one conviction in its twenty-year history and was consistently plagued by procedural and legal problems creating unnecessary delays and paralysis. Since COVID’s outbreak in March 2020, access to the facility has been very limited, and the major death penalty case involving Khalid Sheikh Mohammed, the Pakistani Islamist militant who was named the principal architect of the 9/11 attacks, has been caught up in interminable delays since 2008. As the leader of al-Qaeda’s propaganda operations, he confessed to the Federal Bureau of Investigation (FBI) agents to a role in many of the most significant terrorist plots over the last twenty years, but his interrogators’ use of torture (waterboarding) caused many legal questions to be raised about his confession.
In Boumediene v. Bush (2008), the United States Supreme Court ruled that detainees (Mohammad) had the right of access to U.S. federal courts to challenge their detentions and that the Defense Treatment Act of 2005, and the Military Commissions Act of 2006 were flawed and the means of interrogation put confessions by the use of enhanced interrogation techniques were put into question (waterboarding).
In 2012 the former chief U.S. prosecutor Morris Davis denounced the military trial of Mohammad because permitting the evidence from torture meant the world would never see Guantanamo trials as fair and military commissions would be badly discredited as a result. Davis resigned over the issue and said that advocates of military commissions have prevailed because the rules of evidence prevent defendants from giving detailed descriptions of how they were tortured as well as other sensitive information.
On August 30, 2019, a military judge set a trial date for January 4, 2021. Mohammed’s trial was further postponed because of the COVID-19 pandemic and the recusal and resignation of two judges. As of this point in time, there has been no trial date confirmed.
There are 40 men being held at Guantanamo, many of whom have been confined there for almost two decades without being tried, or for that matter, being officially charged. At least a half dozen of the detainees have been approved for release but they are still being confined. At a minimum, the Biden administration can begin the process by negotiating overseas transfers of the six men with foreign governments as well as explore the opportunity to do so with several remaining detainees who will not be charged with crimes.
It is a sad but true observation that after being held for 18 years without ever being criminally charged a detainee was recently cleared for release after it was officially determined that he was no longer considered such a threat to the United States. However, the bitter irony of this situation is that his home country is Yemen which has been in a state of civil war for almost a decade and he is unable to return home. The question arises as to whether there is a friendly third state prepared to accept him.
Today there are about 1,500 troops, most of them National Guard members, overseeing the 40 men who remain at Guantanamo which requires approximately $540 million annually, or about $14 million per prisoner. The White House has indicated that it will review the status of Guantanamo with the goal of permanently closing it but minimal details have been provided other than that the review will involve the NSC, Congress, and the key cabinet Secretaries of State and Defense, as well as the Attorney General.
In their letter to President Biden, the twenty-four Democratic Senators proposed additional immediate steps that they believed the administration should undertake without delay, indirectly using the US federal courts to pursue guilty plea agreements with detainees who can be federally charged and permit them to serve their remaining prison time overseas, and having the Justice Department conduct plea agreements remotely via videoconference since current federal law prohibits Guantanamo prisoners from entering the United States.
This same proposal was made by former President Barack Obama in 2016 and was vigorously rejected by then-Attorney General Loretta Lynch. She maintained that criminal procedure laws entitle defendants to plead guilty or face a trial by jury. Given the situation facing the Guantanamo detainees, she argued that their only option was to plead guilty or remain in indefinite detention which the federal courts might rule such pleas were in reality “involuntary” and detainees would not have the option of standing trial in a U.S. courtroom.
As I stated five years ago, this proposal had broad-based backing from the Departments of Defense and State and the administration officials spent over two months in the spring of 2016 drafting the new law. When Lynch directly intervened with the president to oppose it Obama decided not to overrule his Attorney General and the bill was scrapped.
In conclusion, despite broad support by human rights groups to close Guantanamo, the prospects for success by the Biden administration are highly questionable particularly given very strong opposition by Senate Republicans who are very concerned about national security implications for the United States. President Biden to date has not publicly pledged to close Guantanamo as did President Obama when Biden served as his Vice President. We do know that Obama was never able to fulfill his pledge and President Biden, I would suggest, will not seek to repeat the failure from the past despite the fact that he probably would not want to pass the problem on to the next president whoever that is. The sad reality is that it may be exactly what happens next.
Dr. Leonard Cutler is a Professor of Political Science and Public Law at Siena College in Loudonville, New York. His most recent book is “President Obama’s Counterterrorism Strategy in the War on Terror” (Palgrave Macmillan, 2017), and currently his book entitled “President Trump’s National Security Strategy: Theory v Practice” is scheduled for publication later this summer in the Evolving Presidency Series of Palgrave Macmillan.
Suggested Citation: Dr. Leonard Cutler, Will Guantanamo Continue As An Unnecessary Presidential Legacy? , JURIST – Academic Commentary, May 10, 2020, https://www.jurist.org/commentary/2021/05/leonard-cutler-potus-guantanamo/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
