Full transcript
0:00"This is a long term war."
0:03"This is a different type of enemy then we’re used to."
0:06"And we're adjusting our thinking to the new type of enemy."
0:09Days after the 9/11 attacks, President George W. Bush
0:12launched the global war on terror.
0:14In October 2001, he sent the military to invade Afghanistan
0:18and hunt down members of al-Qaeda and its ally, the Taliban.
0:21It also offered cash rewards to anyone who would help capture a terrorist.
0:25Often enough money to change lives.
0:28So, many in Afghanistan and Pakistan took advantage of the offer
0:32and turned hundreds of men over often with little evidence.
0:35The US sent those men to secret prisons called black sites.
0:39Where they interrogated and tortured them.
0:41But within a month, they started searching for a larger, permanent prison
0:44to consolidate all these prisoners.
0:46Eventually settling on this old Navy base in Guantánamo Bay, Cuba.
0:56In January 2002, the first detainees began arriving.
1:00One of them was Moath al-Alwi who spent the next two decades in this prison
1:04because the US government deemed him too dangerous to be set free.
1:08But they never charged him with a crime.
1:10And he’s not alone.
1:12Hundreds of men were imprisoned in Guantánamo.
1:15Few were charged with a crime.
1:17Some were tortured.
1:18And none received a fair trial.
1:21It’s a prison that's operated outside the bounds of law.
1:25So, how did the US get away with this?
1:28And why is Guantánamo Bay still open?
1:40There are two myths about the people who were picked up.
1:44One is that they are all hardened, capable terrorists.
1:48The other is that they were all innocent shepherds.
1:51This is Dan Fried.
1:52He worked in the US foreign service for over 40 years
1:55and was assigned to Guantanamo in 2009.
1:57The conclusion I had is that there was kind of a bell curve.
2:00At one low end, there were actually hardened terrorists.
2:05Like this man, Osama bin-Laden’s personal secretary.
2:10There were others that were sometimes petty criminals and drug dealers.
2:13Not great people, but not criminal masterminds, not terrorists.
2:17And the top of the bell curve were people just a little more involved
2:21than what I just described.
2:23At the other end were people who were swept up and shouldn't have been there at all.
2:26Like a group of Uigher men.
2:28Members of a mainly Muslim ethnic group who were fleeing persecution in China.
2:31And they wound up in al-Qaeda camps and we didn't know what to do with them
2:36and so they ended up in Guantánamo.
2:38In fact, many detainees were put in Guantánamo based on little evidence.
2:43Yet Bush officials often described them all as terrorist.
2:46"I mean these are people who would gnaw through hydraulic lines of the back of a C-17
2:50to bring it down.”
2:51"Very, very dangerous people."
2:53By 2003, there were nearly 700 Guantánamo detainees
2:57and virtually none of them were charged with a crime.
3:00"The American flag flies again over our embassy in Kabul."
3:04"Terrorists who once occupied Afghanistan
3:07now occupy cells at Guantánamo Bay."
3:14The Bush administration chose Guantánamo Bay largely because of its unique location.
3:19It was under US control, but it wasn’t technically inside the US.
3:23So, they claimed US law wouldn’t apply to the detainees held here.
3:28If they put them in a US prison, they'd have to either charge them with a crime
3:31and put them on trial or release them.
3:34In other words, under US law, prisoners would have ways to get out.
3:37For bad reasons, they didn't trust the criminal justice system.
3:41It gives too many rights to the prisoners.
3:43There was a sense that the old rules had to be thrown out.
3:46The US also claimed that international law didn’t apply to these detainees either.
3:50Even though 196 countries, including the US, signed the Geneva Conventions:
3:55a set of laws protecting prisoners of war.
3:57But for those laws to apply, the US would have to define the detainees
4:01as prisoners of war.
4:03Then they couldn’t interrogate them.
4:04And would have to release them as soon as the conflict ends.
4:07We didn't want to give them those rights because we were so fearful of a new terrorist attack.
4:12We wanted to interrogate and frankly
4:14some parts of the US government interrogated through torture.
4:17I mean, that's—fact.
4:19So instead of charging them as criminals or calling them prisoners of war
4:23the US made up a new term.
4:25Unlawful enemy combatants.
4:27The US claimed it could hold “unlawful, enemy combatants” without charges in Guantánamo,
4:32indefinitely.
4:33And the detainees couldn’t challenge it in court.
4:37But the US could prosecute them, in a new court system, run entirely by the military.
4:41These courts were designed to be complex, with rules that heavily favored the US government.
4:47For example, the government could introduce evidence
4:50without showing it to the detainee first.
4:53This made Guantánamo Bay prison a “legal blackhole”.
4:57The original sin is that we created an institution outside
5:01and designed to be outside the rule of law.
5:05"No more torture in our name."
5:08"And shut it down and release everybody."
5:11"Justice for Guantánamo detainees, now a core celebra among human rights activists."
5:16World leaders, allied governments, and US politicians began calling for the closure
5:20of Guantánamo.
5:21Plus, Bush officials recognized that it was actually hurting the war on terror.
5:25Gitmo was also a great recruiting tool.
5:27There were all these terrorist videos about how evil the Americans were
5:31and we have to fight back because they imprison people without any legal basis.
5:36They torture people.
5:37Eventually, the Supreme Court stepped in.
5:39In a series of decisions, the Court ruled that Guantánamo detainees were entitled to
5:44challenge their imprisonment in court.
5:47It was clear the US would soon have to let many of these detainees out.
5:50So, the Bush administration reviewed every case and set up a transfer process.
5:55Pretty simple process. Yeah.
5:57Move them back.
5:58Mainly to Afghanistan.
5:59Nobody asked a lot of questions.
6:01Over a 5 year period, the Bush administration transferred 532 detainees
6:06and only convicted 3 through the military courts.
6:095 detainees died in the prison.
6:11Four of them were reportedly suicides.
6:13That left 242 in Guantánamo when he left office
6:16with some hope that the prison would close.
6:20"Guantánamo will be closed, no later than one year from now."
6:24On his second day in office, Barack Obama signed an executive order to close Guantanamo
6:29within a year.
6:30His administration split the detainees into three groups
6:33and laid out a plan with more paths out.
6:36The first group included about half the detainees
6:38who would be transferred either to their home countries.
6:40Or, for those whose home countries were too dangerous or unstable
6:44the US would negotiate deals with other countries to take them.
6:47Or they would be released to the US.
6:49This was the plan for the Uigher men.
6:52A second group would be tried as criminals in a US federal court.
6:55Including five men who helped plan the 9/11 attacks.
6:58But that still left a third group.
7:00There was a category of people we didn't feel comfortable transferring
7:05but without sufficient evidentiary basis to put them on trial.
7:10This final group of several dozen would be moved to a super-maximum security prison
7:14in Illinois.
7:15Then Guantánamo could be closed.
7:17It was a good enough plan.
7:18It had risk.
7:20But keeping Guantánamo open has risks too.
7:26"Now I believe that any plan to close Guantánamo that includes bringing these terrorists into
7:30the United States, Mr. President, is a mistake."
7:33"To do so would be nothing short of an invitation for Al-Qaeda to operate inside our homeland."
7:38"In my view, these men are exactly where they belong."
7:41In Congress, Republican politicians fiercely opposed every aspect of the plan.
7:47They pushed back against transfers and putting any detainees on trial in the US.
7:51"It will make America a more dangerous place."
7:55"And it will allow them the platform to spew their hateful ideology."
7:58They even attacked the plan to move some into the supermax prison.
8:02"You're also putting people who would then start plotting for their escape from the outside
8:07in America's neighborhoods."
8:09All of a sudden when Obama comes in, "Oh no, you can't let people go
8:14because you're letting terrorists out."
8:15By the spring of '09, this narrative was already set:
8:19"The Obama administration: soft on terrorism”.
8:22It's fair to ask tough questions.
8:26What's not reasonable is making it impossible for Obama
8:30when you didn't ask any hard questions about Bush.
8:33Ultimately both Republicans and Democrats passed bills that blocked any Guantánamo
8:37detainee from coming to the US for any reason.
8:40Including for trial, imprisonment, or release.
8:42Then the Obama administration folded.
8:45They gave up at the first sign that it would take a lot of political capital to close Gitmo.
8:50But y’all made a big deal of it.
8:52You better mean it.
8:53The Obama administration didn't mean it enough.
8:56The only two options detainees had stayed in place but got much harder.
9:01The military courts were extremely slow and ineffective.
9:043 convictions had been overturned by 2016.
9:06And transfers became more complicated.
9:09Many of the detainees were from Yemen but couldn't be transferred back after conflict
9:13broke out there in 2011.
9:15So, the US would have to convince other countries to take them.
9:18That was Dan’s job.
9:19For years and years, the American government has said these are the worst of the worst.
9:22These are terrorist masterminds.
9:24And now I'm saying, no, no, they're actually not.
9:26We shouldn't have asked other countries to take them if we weren't willing to take them.
9:30Dan negotiated transfers for 17 Uigher men
9:33who were not allowed to be released to the US.
9:35They'd been held in Guantánamo for more than a decade.
9:39Over 8 years, the Obama administration moved 197 detainees out of Guantánamo
9:44and convicted 5 through the military courts.
9:47Four more died inside, three reportedly from suicide.
9:50That left 41 detainees with a new president who wanted to keep the prison open.
9:56"We're going to keep, as you know, Gitmo, we're keeping that open."
9:59"And we're gonna load it up with bad dudes."
10:01In 2017, Donald Trump took office as a fervent supporter of keeping Guantánamo open.
10:07In four years, his administration only transferred one detainee.
10:12In 2021, when President Biden took office
10:14Moath al-Alwi had been in Guantánamo for 19 years.
10:19According to his testimony, he went on a series of hunger strikes to protest his detention.
10:23And described his life as an “endless horror movie”.
10:27But January 11, 2022, Biden approved Alwi and four other detainees for transfer.
10:32For Guantánamo to close, the Biden administration needs to transfer the last remaining detainees.
10:37And the military courts need to conclude trials for the 10
10:40who are currently stuck in the system.
10:41Including the 5 alleged 9/11 plotters, who have now been on trial for a decade.
10:46Once you start them outside the rule of law
10:49bringing them in the rule of law is a lot trickier than you think.
10:53Don't throw out the rulebook in a fit of passion.
10:56You'll regret it.
10:58And we did.