“With respect to Guantánamo,” President Obama told reporters in November, “it is true that I have not been able to close the darn thing.”
Wednesday marks the 15th anniversary of Guantánamo’s use as a detention facility for terrorism suspects. On Inauguration Day, the prison will pass to its third president, almost eight years after Obama ordered it closed within 12 months.
After a transfer of four Yemeni captives to Saudi Arabia last week, Guantánamo — which held nearly 780 people under President Bush — now holds 55 men. Nineteen have been approved for release to other countries, while 26 are held in indefinite detention: “forever prisoners” of the war on terror. Only 10 have been charged with a crime.
|Ali Hamza al Bahlul||Yemen|
|Ahmed Al-Darbi||Saudi Arabia|
|Said bin Brahim bin Umran Bakush||Algeria|
|Zayn al-lbidin Muhammed Husayn (Abu Zubaydah)||Gaza|
|Encep Nurjaman (Hambali)||Indonesia|
|Mohammed Abdul Malik Bajabu||Kenya|
|Ismael Ali Faraj All Bakush||Libya|
|Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi||Libya|
|Bashir bin Lap||Malaysia|
|Mohd Farik bin Amin||Malaysia|
|Abdullah Al Sharbi||Saudi Arabia|
|Mohamed Mani Ahmad al Kahtani||Saudi Arabia|
|Guleed Hassan Ahmed||Somalia|
|Abd Al-Salam Al-Hilah||Yemen|
|Hassan Bin Attash||Yemen|
|Khalid Ahmed Qasim||Yemen|
|Moath Hamza Ahmed Al-Alwi||Yemen|
|Omar Mohammed All Al-Rammah||Yemen|
|Said Salih Said Nashir||Yemen|
|Sanad Al Kazimi||Yemen|
|Sharqawi Abdu Ali Al Hajj||Yemen|
|Suhayl Abdul Anam al Sharabi||Yemen|
|Uthman Abd al-Rahim Muhammad Uthman||Yemen|
|Haji Wali Muhammed||Afghanistan|
|Abdul Latif Nasir||Morocco|
|Jabran al Qahtani||Saudi Arabia|
|Ridah Bin Saleh al Yazidi||Tunisia|
|Mjuayn Al-Din Jamal Al-Din Abd Al Fadhil Abd Al-Sattar||UAE|
|Ghaleb Nassar Al Bihani||Yemen|
|Hail Aziz Ahmed Al-Maythali||Yemen|
|Mohammed Ahmen Said Haider||Yemen|
|Musab Omar All Al-Mudwani||Yemen|
|Mustafa Abd al-Qawi Abd al-Aziz al-Shamiri||Yemen|
|Salman Yahya Hassan Mohammad Rabei’i||Yemen|
|Tawfiq Nasir Awad Al-Bihani||Yemen|
|Walid Said bin Said Zaid||Yemen|
|Yassim Qasim Mohammed Ismail Qasim||Yemen|
|Nashwan abd al-Razzaq abd al-Baqi (Nadi)||Iraq|
|Ali abd al Aziz Ali||Pakistan|
|Khalid Sheikh Mohammed||Pakistan|
|Mohammed al Nashiri||Saudi Arabia|
|Mustafa Ahmad al Hawsawi||Saudi Arabia|
|Ramzi Bin Al Shibh||Yemen|
|Walid Mohammed Bin Attash||Yemen|
In interviews with The Intercept, several attorneys who represent Guantánamo detainees expressed deep uncertainty about the fates of their clients and the other detainees who will pass into Donald Trump’s custody.
“This is nothing new, this type of uncertainty,” said Gary Thompson, a lawyer at the law firm Reed Smith LLP who represents detainees on a pro bono basis. “But we’re at a point in time where there’s a window closing — fast — on the release of several dozen men who are fully cleared for release.”
Throughout the 2016 campaign, Guantánamo has been an object of Trump’s sensationalist rhetoric, but the president-elect has wavered on the question of whether he might actually release cleared detainees.
“As far as Guantánamo is concerned,” Trump told the Miami Herald in August, “I want to make sure, 100 percent sure, that if we’re going to release people, number one — they are going to be people that can be released, and it’s going to be safe to release them.”
But in response to recent detainee transfers, Trump seemed to close the door on that possibility, tweeting that there “should be no further releases from Gitmo,” because the detainees are “extremely dangerous people.”
There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.— Donald J. Trump (@realDonaldTrump) January 3, 2017
During his campaign, Trump promised to “load [Guantánamo] up with some bad dudes,” and even said he would be comfortable prosecuting American citizens for terrorism in Guantánamo’s military commissions — which is prohibited by the 2006 Congressional law that established them.
“You just can’t predict” Trump, said David Remes, a human rights attorney who has represented numerous Guantánamo detainees. “To some extent it depends on whether he’s in a good mood or bad mood, or magnanimous or vindictive, at any particular time.”
Martha Rayner, a law professor at Fordham University, said that there is nothing new about the detainees being subject to the whims of politics. “There has been vast uncertainty for the entire duration of Guantánamo. That’s what detention without trial — indefinite detention — is. It is the definition of uncertainty. These men have always been at the mercy of politics, and how politics have changed over the years.”
When Obama inherited Guantánamo Bay in 2009, he enjoyed bipartisan support for closing the prison. It was one of the campaign issues that he and his Republican opponent John McCain agreed on. Even President Bush, who had created the legal black hole, said “I very much would like to end Guantánamo; I very much would like to get people to a court.”
But when Obama started acting on his campaign promise to the close the facility, congressional Republicans quickly realized it was a way to attack the popular, charismatic president who had thrashed them at the polls.
In 2009, Obama tried to resettle two detainees in the United States. Both were ethnic Uighurs, or Chinese Muslims living in Afghanistan when the war started. Both had been ordered released by a federal judge and cleared of terrorist involvement by the Bush administration, and were going to be resettled in an community of Uighur immigrants in Northern Virginia and monitored. But after furious backlash from Republicans — which included Newt Gingrich trying to connect the two to the 9/11 attackers — Obama backed down.
The damage was done: Obama’s treatment of war-on-terror captives was now a political vulnerability. Later that year, Umar Farouk Abdulmutallab — the Christmas-day “underwear bomber” — would smuggle a bomb on board a plane and try to detonate it over Detroit. The pace of transfers out of Guantánamo afterward would slow to a trickle.
Republican fear mongering had turned the Democrats against the president’s plan. In 2009, according to Gallup, a narrow majority of Democratic voters wanted the prison closed and the detainees resettled, but by 2014, more Democrats wanted to keep Guantánamo open than shut it.
Detainee hunger strikes led to increased public pressure to do something, and the Obama administration began accelerating the pace of Guantánamo transfers after 2013. In the last two years the number of detainees has shrunk from more than 120 to 55.
One of the 19 people Obama approved for transfer who will likely still be there when Trump takes over is Ravel Mingazov — a former ballet-dancer with the Russian Red Army, and a client of Thompson’s. Obama’s task force recommended he be prosecuted in 2009, but a federal judge in 2010 found no evidence to detain him, and ordered his release. The Obama administration appealed and fought the ruling, before approving him for transfer last July.
Thompson declined to comment on the status of his transfer, but described the process as a “legal black hole.”
“If we detain someone,” said Thompson, “we say why. We bring charges. There’s a process for reaching a conclusion or determination that justifies detention.”
Continuing Indefinite Detention
In addition to inheriting the prison and its captives, Trump will assume the troubling power that enables it to exist: the authority to hold terror suspects in military detention with a limited ability to challenge their own captivity.
Very early on in his presidency, Obama realized that he did not want to prosecute or release every detainee in Guantánamo — that he would indefinitely detain a small number that he could not prosecute, but that he nonetheless considered too dangerous to release.
As New York Times Reporter Charlie Savage points out in his book Power Wars, Obama’s initial executive order to shutter the facility gave the executive branch four options for its prisoners: releasing them, prosecuting them, transferring them to another country, or employing another “lawful means” of resolution — a euphemistic reference to indefinite detention.
Seven years later, when Obama presented his final blueprint for how to close Guantánamo, he proposed to transfer these “high-value” detainees to the mainland United States, but still without a trial or release date. The proposal reserves the option to detain them for decades further — estimating the cost of holding them out to 20 years.
“The Obama administration was no different than the Bush administration on this concept – that detention without trial is lawful,” said Rayner.
In the meantime, Obama weakened the due process protections for detainees. In 2008, the Supreme Court ruled that Guantánamo detainees have a right to challenge their detention by filing petitions of habeas corpus in federal court. That ruling lead to a flood challenges in the D.C. District Court — most of which the Obama administration fought.
After losing most of its cases in lower courts, the Obama administration began appealing them to the conservative D.C. Court of Appeals, which reversed all of the favorable verdicts. The Appeals Court gradually imposed legal standards that made it nearly impossible for detainees to secure release, effectively hollowing out the ability of “forever prisoners” to challenge their continuing detention.
One of those prisoners is Saifullah Paracha, a Pakistani businessman, one of Remes’s clients, and one of the 26 prisoners the Obama administration considers too dangerous for release. Paracha, who started import-export and broadcasting businesses in Pakistan, was lured to Thailand in 2003 by people posing as buyers, where the U.S. arrested him. He has been in Guantánamo since 2004.
At 69, Paracha is the oldest detainee currently in Guantánamo, and suffers from heart disease, diabetes, and arthritis. He has been hospitalized several times for chest pains, and is now allowed to keep nitroglycerin in his cell, according to Remes. Due to congressional transfer restrictions, he cannot be transferred to the United States for medical care.
In November, Remes learned that Paracha would get a second “full review,” to determine whether he could still be held in indefinite detention. In seven of the last eight cases when detainees got a second review, they were subsequently cleared for release. But according to Remes, Paracha’s review would not come until March — leaving his fate in the hands of Donald Trump’s appointees.
On learning that the hearing was set for March, Remes sent an email to Lee Wolosky, the State Department’s special envoy for closing Guantánamo, urging that Paracha be released prior to the incoming administration. “It’s entirely conceivable,” Remes wrote, “that Mr. Paracha will die of a heart attack at Guantánamo if he is not released before the President leaves office.”
Trump has stacked his cabinet with nominees who are deeply hostile to detainees’ due process rights.
Sen. Jeff Sessions, R-Ala., Trump’s nominee for attorney general, and Rep. Mike Pompeo, R-Kan., Trump’s nominee for CIA director, both vigorously opposed efforts to close the facility in Congress. Dan Coats, a former senator and Trump’s pick to be director of national intelligence, made preserving Guantánamo such a key issue of his time in office that he even ran advertising against his election opponents based on it.
Gen. John Kelly, Trump’s pick for secretary of homeland security, personally oversaw the prison’s operations as head of U.S. Southern Command, and publicly disagreed with President Obama about his stated mission to close it. “They’re all bad boys,” Kelly told reporters last January. “We have dossiers on all of them. Some of them were more effective in being bad boys than others.”
But the Trump nominee with the most influence on the detention facility would be Gen. James Mattis, Trump’s nominee for defense secretary. Mattis will appoint the Defense Department’s policy director for detainee affairs, who has the power to stall the detainee review process indefinitely.
Mattis is pushing back on some of Trump’s proposed nominees, according to the Washington Post, but there’s no indication he would take such a stand for Guantánamo detainees. In 2015, Mattis told the Senate Armed Services Committee that people who “sign up with this enemy” should be “taken prisoner” “until the war is over” – without explaining what that meant in the context of the war on terror.
When asked if he thought Paracha’s hearing would go forward, Remes responded, “It’s hard to predict. It’s possible that Mattis will just allow the process to continue on automatic pilot, initially at least. We hope for the best and prepare for the worst.”
The same day Obama laid out his vision to close Guantánamo — his third day in office — he also closed the CIA’s network of international secret prisons, or “black sites.” But without any congressional prohibition on the CIA participating in detention or interrogation, many are worried that Trump could re-open them.
Obama even helped pave the way for him to do so by arguing that the military’s prisoners in prisons overseas — like Bagram in Afghanistan — did not have habeas corpus rights in American court.
With even more diminished rights overseas, rights activists are worried that Trump could create more Guantánamos.
“Guantánamo isn’t really so much a physical place,” said Thompson. “It’s the idea of there being a legal black hole, where the rule of law doesn’t apply. Whether you physically situate that in Guantánamo, Cuba, or you situate it at a black site somewhere else around the world, or you situate it within the borders of the continental United States, that’s the problem. The problem is the idea that there can be a legal black hole; there can be a place where the law doesn’t apply.”