When information of Joe Biden’s election victory crossed the Florida Straits and reached Guantánamo Bay, it gave at the least a number of the 40 remaining inmates a tentative hope that their lengthy purgatory would possibly lastly be nearing an finish.
“I believe it’s OK for me to be pleased concerning the outcome. However on the identical time, it’s not like, day one, Biden goes to say ‘let’s launch Khalid’,” Khalid Qassim, a Yemeni arrested in Afghanistan in 2001, mentioned in a press release given by telephone to his lawyer.
Qassim has denied any hyperlink with terrorism and has withdrawn earlier confessions of hyperlinks to al-Qaida, which he says have been made underneath torture. He insists he was in Afghanistan on the lookout for work. He has been held at Guantánamo for almost 19 years with out being charged with a criminal offense.
“Plenty of the detainees are feeling higher,” he mentioned. “It’s a aid, you already know? We all know nothing will occur on day one, however at the least our circumstances gained’t be stagnant, we gained’t be completely forgotten.”
How far the Biden administration will go to extricate Qassim and his fellow inmates from the judicial black gap established in Guantánamo in 2002 will say loads concerning the president-elect’s willpower to interrupt with the previous, and with the counter-terrorism response to the 9/11 assaults, that has formed US international and safety coverage ever since.
To this point, Biden has mentioned little or no about his plans for Guantánamo, apart from restating his intention to shut it. His marketing campaign put out a assertion in June saying its existence “undermines American nationwide safety by fuelling terrorist recruitment and is at odds with our values as a rustic”.
“The president-elect stands by that,” a transition official mentioned.
Nonetheless, the incoming administration will begin work on the peak of a pandemic, with an accompanying financial disaster and a deeply divided nation. Closing Guantánamo shall be a fancy activity and can accrue little political credit score. The transition workforce is weighing ways for winding up the detention centre established nearly 19 years in the past on the naval base on the US toehold in Cuba, however has revealed little of its deliberations.
Former officers say the Biden camp has realized the lesson of the Obama administration, which made huge guarantees – issuing an govt order on closure on its second day – however then fell quick. Over eight years, it managed to switch about 200 inmates, negotiating offers with nations world wide to take them, however the effort was hindered by congressional resistance and foot-dragging within the Pentagon.
Earlier than 2009, closing Guantánamo was a bipartisan matter. George W Bush admitted it was a nationwide legal responsibility and transferred greater than 500 inmates, however when Obama took workplace and named closure as a precedence it grew to become a Republican goal, with out full Democratic assist.
Donald Trump ended the switch coverage from Guantánamo and vowed to “load it up with some dangerous dudes”, although he did no such factor. The jail inhabitants really decreased by one on his watch. However that also leaves 40 males caught in Caribbean limbo, at an annual value of $13m per prisoner. Solely 9 have been charged. Others, similar to Qassim, have been swept up on the battlefield and have little or no connection to terrorist assaults on the US, some handed over for the bounty the US was providing.
5 prisoners have really been cleared for switch by the Periodic Evaluate Board (PRB), however have been caught within the camp for years due to Trump’s coverage.
“For 4 years, Guantánamo coverage has basically been set by a Trump tweet, posted earlier than he was even in workplace, saying there ought to be no extra releases. The very first thing Joe Biden ought to do is resume the switch course of,” mentioned Maya Foa, director of the advocacy group Reprieve, which offers Qassim’s authorized illustration.
The 5 already cleared may very well be transferred within the early levels of a Biden presidency, together with 4 or 5 extra inmates who had been anticipated to win approval from the PRB earlier than the board was mothballed by the Trump administration.
A particular envoy and a State Division workplace devoted to closing Guantánamo – each eradicated by Trump – must be reconstituted and empowered to barter with nations on resettling former inmates, a few of whom – Yemenis similar to Qassim for instance – are unable to return to house nations.
Benjamin Farley, a Guantánamo defence lawyer who labored within the State Division workplace negotiating transfers within the Obama administration, argues that as much as 30 of the prisoners may very well be repatriated or resettled by reviving the mechanisms that Trump dismantled, without having permission from Congress.
A part of the method can be reframing the standards utilized by the PRB in assessing whether or not continued detention is “mandatory to guard in opposition to a big menace to the safety of the US”.
At current the PRB operates like a parole board, on the lookout for indicators of contrition. As a substitute, Farley argues, it ought to weigh every prisoner’s seemingly future menace when it comes to their age, psychological and bodily state and the circumstances within the nation of resettlement.
The method can be accelerated by a cooperative Division of Protection, mentioned Alka Pradhan, one other Guantánamo defence lawyer.
She mentioned that a part of the issue was the Pentagon’s aversion, presumably for authorized legal responsibility causes, to admitting that some prisoners ought to by no means have been at Guantánamo within the first place.
“One of many points was that the Division of Protection would solely authorise a brief paragraph of data for the State Division to transmit to 3rd nations, and it might actually be the identify of the particular person, his nation of origin and the way lengthy he had been at Guantánamo. There was just about no different info,” Pradhan mentioned. So the would-be host nation would search the identify on-line and switch up unverified and sometimes fabricated allegations concerning the inmate.
The toughest a part of any effort to shut Guantánamo can be the 10-12 prisoners who’re both going through army fee hearings or are thought of of such safety significance to the US that it’s extremely unlikely any PRB would launch them.
The army fee system has been an abject failure in delivering justice. The 5 defendants accused of enjoying a task within the 9/11 assaults, together with their alleged mastermind, Khalid Sheikh Mohammed, are nonetheless in pre-trial hearings greater than 12 years after being charged. The method is primarily caught on the admissibility of testimony the defendants offered after being tortured at CIA black websites. The historical past of torture would additionally overshadow any try to attempt them in federal courts.
In these circumstances, legal professionals and human rights advocates argue the US ought to provide plea offers, probably negotiated by federal judges flown into the bottom, that might clear the best way for launch for time served or life sentences in a handful of circumstances.
For these sentences to be served within the US, a deal must be struck with Congress to reverse a measure banning any prisoner transfers from Guantánamo. Or one other nation must be persuaded to take custody. And there’s no assure that each one the defendants would settle for the offers on provide.
Full closure of Guantánamo would want a considerable funding of political capital, on Capitol Hill and in international capitals, at a time when there shall be many different urgent points begging for consideration.
Karen Greenberg, director of the Heart on Nationwide Safety at Fordham College Faculty of Legislation, nonetheless believes that Biden’s workforce can end the job.
“I believe there’s greater than a 50-50 likelihood,” she mentioned. “You might want to perceive that Guantánamo as an emblem must be taken out of the equation of what’s related to the US … these guys perceive that.”