Trump inherits the Guantánamo jail, full with 4 ‘perpetually prisoners’

President Joe Biden’s file of dealing with the U.S. army jail at Guantánamo Bay, Cuba, is decidedly combined. He succeeded in decreasing the detainee inhabitants he inherited by greater than half, however he compounded issues within the army commissions that the Bush administration had invented within the wake of the 9/11 assaults to attempt folks captured within the “struggle on terror.” Now all the issues at Guantánamo are once more President Donald Trump’s.

When Biden took workplace in 2021, there have been 40 prisoners. Immediately there are 15, the bottom quantity because the first 20 Muslim males and boys captured in Afghanistan have been airlifted to the bottom on Jan. 11, 2002.

Biden left Trump 4 folks the U.S. won’t launch but in addition can not placed on trial – the so-called “perpetually prisoners.” He additionally left intact the troubled army commissions system, with three pending prison circumstances in opposition to a complete of six detainees.

In December 2021, former chief army protection legal professional Brig. Gen. John Baker testified earlier than the Senate Judiciary Committee: “It’s too late within the course of for the present army commissions to do justice for anybody. One of the best that may be hoped for at this level … is to deliver this sordid chapter of American historical past to an finish.” Baker made clear that the one viable possibility is to resolve the circumstances with plea bargains for the defendants.

An opportunity to make progress

There are three circumstances that haven’t but gone to trial – the 9/11 case with 4 defendants dealing with prices for his or her connections with the assaults, the usCole bombing in October 2000 with one defendant and the Bali bombing in October 2002 with one defendant.

The 9/11 and USS Cole circumstances have been caught within the pretrial section since Biden was Barack Obama’s vice chairman. In the summertime of 2024, a breakthrough within the 9/11 case appeared imminent: Prosecutors and protection legal professionals for 3 of the 4 defendants reportedly reached plea-bargain agreements. Khalid Sheikh Mohammad – the alleged “mastermind” of the assaults – Walid bin Attash and Mustafa Hawsawi agreed to plead responsible and settle for life sentences in change for the federal government taking the demise penalty off the desk. There was no deal for the fourth 9/11 defendant, Ammar al-Baluchi.

The offers have been accepted on July 31 by the highest army officer overseeing the Guantánamo commissions, retired Brig. Gen. Susan Escallier. However two days later, Biden’s protection secretary, Lloyd Austin, stepped into the method and overrode Escallier – whom he had appointed. Austin introduced that the plea offers have been revoked.

The decide, Air Drive Col. Matthew McCall, determined to schedule plea hearings for early January. However after some authorized back-and-forth that pressured a keep, he needed to cancel them. Biden left the case in opposition to three 9/11 defendants in limbo.

Witness to the transition

In mid-January 2025, I made my sixteenth reporting journey to Guantánamo. I got here for closing arguments on a movement within the 9/11 case that seeks to suppress statements that Ammar al-Baluchi made to the FBI in January 2007. That was 4 months after he and 13 others have been transferred to Guantánamo from CIA black websites the place they have been held for years. The litigation to suppress these statements began in 2019.

In Chapter 10 of my e-book, “The Battle in Court docket: Contained in the Lengthy Battle in opposition to Torture,” I element how the litigation on this suppression movement made public beforehand unknown particulars and under-acknowledged horrors of the CIA’s rendition, detention and interrogation program.

These closing arguments have been the fruits of six years of litigation on the important thing query within the 9/11 case: Does torture matter within the pursuit of justice within the army commissions?

Can Guantánamo be closed?

Of the 780 folks ever detained at Guantánamo, 540 have been launched throughout the presidency of George W. Bush, who established the detention facility. Obama, who signed an government order on his second day in workplace pledging to shut Guantánamo inside a 12 months, launched 200.

In his first time period, Trump pledged to maintain the power open. The one man to go away Guantánamo throughout Trump’s first time period was Ahmed al-Darbi, who was repatriated to Saudi Arabia in 2018 to serve out the rest of his sentence from a 2014 plea discount settlement.

When Biden took workplace, he stated that he supported shutting down the army jail at Guantánamo. Within the early years of his presidency, there was a sluggish stream of transfers, largely individuals who had been cleared for launch way back and have been freed.

In Biden’s final months, the tempo of transfers quickened. In December 2024, a Kenyan detainee, two Malaysian members of al-Qaida who had pled responsible the earlier January, and a Tunisian man who had been in Guantánamo because the day the power was opened have been all repatriated to their international locations of origin and freed. In January 2024, 11 Yemenis have been transported from the jail to Oman to be resettled.

15 males left behind

The Biden administration had additionally deliberate to repatriate a severely disabled Iraqi detainee, Abd al-Hadi al-Iraqi, to serve out his plea-bargained sentence in a Baghdad jail. However a federal decide blocked that switch, ruling that al-Iraqi wouldn’t get obligatory medical remedy in Iraq and could be topic to abuse there.

Al-Iraqi is likely one of the 15 that Biden left behind. Three of them – a Libyan, a Somali and a stateless Rohingya – have lengthy been cleared for launch. Their persevering with detention with out prices highlights a key factor of the Guantánamo downside: Nobody could be launched until the U.S. authorities finds one other nation keen to just accept them.

One of many remaining detainees, Ali Bahlul, is serving a life sentence for conspiracy to commit struggle crimes. Six others, together with the 4 9/11 defendants, are awaiting their trials.

There are additionally 4 detainees whom the federal government refuses to switch however can not placed on trial for lack of proof.

These so-called “perpetually prisoners” embrace Abu Zubaydah, a Saudi-born man of Palestinian descent who was taken into CIA custody in 2002 and was used because the guinea pig for the CIA torture program. The federal government way back conceded that Abu Zubaydah was not a high chief of al-Qaida – in truth he was not even a member. However he won’t be launched as a result of he is aware of how he was handled by the CIA, and that remedy stays extremely labeled.

The most recent perpetually prisoner is likely one of the authentic 9/11 defendants, Ramzi bin al-Shibh; in September 2023, he was declared mentally incompetent to face trial. Now he’s uncharged, unreleased and untreated for his psychological maladies that have been attributable to the torture he endured in CIA black websites.

The ‘Battle on Terror’ shouldn’t be over

When Biden pulled U.S. troops out of Afghanistan in August 2021, he claimed to have ended America’s longest struggle – and repeated this declare in a January 2025 speech. However the Guantánamo jail stays open, and so long as it’s, the “struggle on terror,” which first put U.S. troops in Afghanistan in 2001, shouldn’t be over.

How Trump will take care of Guantánamo is an open query. If he focuses on the demise penalty, he’ll press forward with army fee trials like his predecessors, hoping for unanimous responsible verdicts and demise sentences. If he prioritizes reducing wasteful authorities spending, he’ll launch further detainees and permit the three plea discount agreements to enter impact.

Nobody I spoke to throughout my final journey was keen to foretell what a second Trump time period may bode for Guantánamo – besides that it gained’t be closed.