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Why is the Guantánamo Bay prison still open?

Vox · 1,845 words · 9 min read

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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.

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