Inside Joe Biden’s Secret Strategy to End the Horror of Gitmo

​Originally intended to be an island outside the law where the United States could detain and torture terrorist suspects, the existence of the prison and military commissions at Guantanamo Bay, also known as Gitmo, are catastrophic failures. Since the George W. Bush administration established the prison camp in 2002, almost 800 men have passed through this metaphoric Hell on earth.  The end of the forever war in Afghanistan is the first step toward the end of this stain on humanity, justice, and the rule of law.

Guantanamo Bay Location

Quick Guantanamo facts:

• Located on the southeast corner of Cuba, Guantanamo Bay’s strategic location and topographic properties have made it a valued possession of maritime powers since the 15th century.  
• In the 1898 Spanish-American War, United States forces seized Guantanamo Bay as a foothold for its military campaign in Cuba.
• In 1903 the United States leased 45 square miles of land at Guantanamo Bay from its puppet Cuban government as a deep-water port. 
• A 1934 treaty reaffirming the lease granted Cuba free access through the Bay, changed the annual lease payment from $2,000 in gold coins to the 1934 equivalent value of $4,085 United States dollars, and added a covenant that termination of the lease required the consent of both the United States and Cuban governments. 
• The Cuban Revolution of 1959 resulted in United States' severance of diplomatic ties with Cuba in 1961, but there has been little dispute of the ongoing occupation of the area by United States forces.
• United States Navy Guantanamo Bay base houses a detention camp administered by the shadowy Joint Task Force Guantanamo (JTF-GTMO).

​Guantanamo has become a symbol of American hypocrisy, abuse, and disregard for decency and the rule of law. The United States Congress passed an ‘authorization for the use of military force’ in 2001 to go after whoever was responsible for those attacks, like al-Qaida and the Taliban. The law gives the president sweeping powers during wartime, and the executive branch claimed and continues to maintain that includes the ability to detain prisoners without charge or trial.

The Bush administration issued a Military Order authorizing trial by a military tribunal for non-United States citizens who were members of al Qaida, who engaged in terrorism, conspired to do such, or people who have knowingly harbored such individuals.  Military commissions are how the United States then prosecutes detained individuals.

Aerial Photo of the Detention Center

The Bush administration established the detention camp to house the most dangerous criminals, especially those who had committed war crimes.  The initial US government position concerning Guantanamo was that detainees were ‘unlawful enemy combatants,’ and none of the protections contained in the Geneva conventions applied to them.  In other words, torture was on the menu for the madmen who dreamt it up and their agents who implemented it.

The Bush Administration located the facility off domestic soil to allow the United States to detain, interrogate, and sometimes torture suspects, ostensibly to gather information about future terror attacks, without benefit or protection of United States constitutional protections. 
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Few political figures raised objections to these tactics. The United States Congress has approved funding for the camp annually since its construction.  To maintain one American political party is morally clean or the other less so is fiction as there has been bipartisan support for the continued funding and so consent for its existence and operation.

Prisoners at Gitmo

​The United States government tortured or otherwise abused most of those imprisoned at the Guantánamo Bay Detention Camp.  The torture included waterboarding, sexual harassment and abuse, physical abuse, and sleep deprivation. The Red Cross, the United Nations, and the Center for Constitutional Rights have all confirmed that the United States government tortured people imprisoned at Guantánamo Bay. Yet, unfortunately, the United States has not prosecuted any of the officials who authorized the use of torture or implemented it. This failure serves as a tacit reassurance that the government will treat prosecuting torture and other human rights violations lightly in the future.

It is undetermined when ‘authorization for the use of military force’ expires, the parameters of that war. The United States has defended holding prisoners forever, without charges, adequate legal representation, or other redress due to the now-global ‘war on terror.’ Regardless, the United States withdrawal from Afghanistan raises complicated legal questions, such as whether a war is ongoing once fighters leave the battlefield and when to liberate prisoners following a troop withdrawal.

Legal actions attempting to resolve the opacities of the ‘authorization for the use of military force’ resulted in courts avoiding addressing whether these vast presidential war powers are specific to a particular geography, instead of referencing the war in Afghanistan as justification for holding detainees. Human rights activists and detainees' lawyers argue a war must have definitions to determine its end and the time to release the prisoners of that war.
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In a consolidated cases in 2008 the Supreme Court held in a 5-4 opinion that aliens designated as enemy combatants and detained at Guantanamo have the constitutional privilege of habeas corpus. However, the Court also found that § 7 of the Military Commissions Act (MCA), which limited judicial review of administrative determinations of the petitioners' enemy combatant status, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas.  Prisoners then were technically able to challenge their situation in United States federal courts to scant outcomes. 
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There are now 39 prisoners remaining in Guantanamo, as a former detainee, Abdul Latif Nasser saw his family again in Morocco after United States troops turned him over to Moroccan state custody in July 2021. Mr. Nasser was a prisoner for more than 19 years.

Amin, Lep, and Nurjamen Mugshots

In the most recent ‘legal actions’ at Guantanamo, the United States criminally charged two alleged Malaysian terrorists, Mohammed Nazir Lep, 45, and Mohammed Farik Amin, 46, both detained at the detention camp in Cuba since 2006, along with the alleged mastermind of the bombings, Indonesian Encep Nurjaman, also known as Hambali.  The three have spent more than 14 years in Guantanamo.
 
Of the 39 men remaining prisoners:

• 12 are involved in the military commissions' war court — three are facing proposed charges, seven are facing active charges, with two convicted. Six of the active actions are death penalty cases.
• 17 detainees are in indefinite law-of-war detention and are neither facing tribunal charges nor recommendations for release.
• 10 remain in law-of-war detention but recommended for transfer with security arrangements to another country.
• Since President Biden entered office, his administration has cleared at least six Guantanamo detainees for transfer to other countries.

​Federal law bars the United States government from transferring any inmates to prisons on the United States mainland. However, Biden would face a tough challenge securing legislative changes to allow such transfer because some Democrats oppose them.

Military figures and hawkish politicians lead the opposition to the closure, claiming released detainees have committed terrorist acts without credible evidence. However, the utility of such an extra-legal institution substantially benefits intelligence agency types who relish the opportunity to interrogate suspects without legal restraint and due process legal considerations.

The Biden administration has announced it intends to close the facility, although the mechanism of completing that intent is undefined.  Biden proposed a commission to examine alternatives, although this commission's specific actions and intended mandate are unclear. 

Joe Biden has shown the political will to close the Forever War chapter in American history and take the heat for the consequences of his decisions.  Biden is less susceptible to military arguments to continue formal military action in the Middle East hence his withdrawal decision.  The overwhelming majority of United States citizens supported the recent withdrawal.  

The immediate optics of the collapse of the puppet regime were quite negative, and political pundits had a field day pointing fingers. However, history undoubtedly will find a different judgment as Afghanistan devolves into a medieval nation and the United States becomes one of many occupying powers to have failed nation-building in Afghanistan.

Likely future actions by the Biden administration:

• Formalize the commission and help it to find a recommendation to close the detention center.
• Seed the debate with the presentation of the enormous cost of detaining so few detainees.
• Reopen discussions with foreign nations to accept detainees under qualified conditions and lower the numbers, making closure less controversial.
• Continue to prohibit additional detainees at this location.
• Extradite prisoners to friendly governments for trial and detainment overseas.
• Close the facility.