This week marks 20 years since the opening of the prison at Guantánamo Bay. It is not yet closed, as I had hoped it would be a decade ago, but this serves as a week of remembrance for all who have suffered in the U.S.’s illegal offshore prison.
As a young lawyer, I first traveled to Guantánamo in 2006 to represent three Uyghurs, including a child, held without charge or trial. I have returned many times in each year since, and represented dozens of other detained men, from Somaliland to Baltimore, in federal courts, military commissions and administrative hearings. I’ve seen about everything there is to see when it comes to challenging unlawful detentions at Guantánamo.
This notorious military installation has changed since the first planeload of men arrived from Afghanistan a generation ago, but the lawlessness from which it originated and the human suffering it has caused endure. As Sen. Dick Durbin remarked recently, Guantánamo is “where due process goes to die.”
My first trip to “the Island” was profoundly disorienting and disturbing. After a rough flight to the naval station on a charter plane so decrepit it had to stop midway from Fort Lauderdale to be serviced at a seemingly abandoned airstrip in the Bahamas, my co-counsel, our interpreter and I were met by a phalanx of U.S. servicemembers with guns and K-9s. Throughout the next few days, we were searched repeatedly, had our client meetings interrupted for no apparent reason except to disrupt our work and were escorted everywhere like wayward children.
This was years after our clients arrived at Guantánamo, but during the height of the “war on terror.” This was the time of shackled men in orange jumpsuits, clients showing up to meetings bearing signs of physical abuse, and denigration of Islam including desecration of the Quran. It was also a time of excessive secrecy. We did not know who was detained at Guantánamo; men were called by internment serial numbers, not their names. We learned who was held, bit by bit, when our clients showed up to meetings with lists of other men in nearby cells who wanted lawyers to challenge their indefinite detention or call their families to say they were alive.
Back then, the U.S. considered all detainees hard-core “terrorists” who would kill if they had the opportunity, and detainee lawyers were not welcome at Guantánamo. We were the enemy.
Fast-forward to 2012, and those narratives had been debunked. Most of the 780 men brought to Guantánamo had been released, including my Uyghur clients, who the government had concluded many years earlier had been captured by mistake. Guantánamo was also no longer exceptional. Indefinite military detention was entrenched. As I wrote then, it had become part of the American landscape. It had achieved a degree of normalcy, which, admittedly, was sometimes difficult to shake for those of us who had been traveling to the prison for so many years. As far as some of the new, younger guards were aware, Guantánamo had always existed. Defense lawyers were no longer uncommon or even necessarily unwelcome at the base. The Supreme Court had since settled the right of the detained men to challenge their detention in court, which, if nothing else, ensured their continued access to lawyers like me.
Although secrecy still predominated (as it does today), particularly surrounding “high-value” detainees like my clients Majid Khan and Guled Duran, who were transferred to Guantánamo from secret CIA detention in September 2006, we now had freer access to the detained men. We litigated their legal cases vigorously and, at least initially, successfully. We also worked closely to resolve detainee cases with the Obama administration, which had ordered the closure of Guantánamo and substantially reduced the detainee population. We traveled the globe to encourage U.S. allies to resettle detained men.
In January 2012, however, when faced with other political challenges, President Obama turned his back on Guantánamo and surrendered closure issues to his political opponents in Congress. Transfers stopped for two years, and he struggled to regain momentum toward closure until a widespread hunger strike at the prison refocused those efforts during his second term. The result was clear: The remaining men who had cheered Obama’s election began to lose hope. I saw their pain in the eyes of my Algerian client, Djamel Ameziane, whose approval for transfer the government had long concealed from the public. But Ameziane was one of the fortunate to leave the prison after transfers resumed in late 2013. Others were not so lucky, and, despite a resurgence of transfers in the final years of the Obama administration, many men were left in limbo when the Trump administration came into office and transfers halted once again.
Today, 39 men remain held indefinitely at Guantánamo, despite the end of the Afghanistan conflict in which many of them were ostensibly apprehended. Twelve are involved in military commission proceedings, including Majid Khan, who will complete his commission sentence in February and then need to be transferred. The remaining 27 are awaiting transfer, some of them already approved unanimously to leave more than a decade ago by the relevant U.S. military, intelligence and law enforcement agencies. Many are convinced they will die at Guantánamo, alone and forgotten, never having seen the inside of a courtroom.
But I was wrong when I wrote about these men a decade ago: They have not lost all hope. The prison that Amnesty International once branded the “gulag of our times” has become their “forever prison.” Yet the human spirit is difficult to crush. The remaining men may be largely resigned to their fate, but most retain at least a glimmer of hope that one day they will be free.
Whether that dream will be realized is now up to President Biden. As with two of his three predecessors in the Oval Office, he says he is committed to closing Guantánamo as a matter of policy. But unlike those predecessors, the Biden administration has not taken substantial steps toward achieving that objective. During his first year in office, Biden has approved several detainees to leave Guantánamo, but transferred only one man home to Morocco, a transfer which was negotiated at the end of the Obama administration. At that rate, Guantánamo may never close. Biden has all the legal authority he needs to increase the pace of transfers; the question, as with each of the last four presidents who have served since Guantánamo opened in 2002, is whether he will use that authority.
For those detainees not yet awaiting transfer, contested military commission cases continue to provide a thin veneer of legal process to maintain the status quo and cover up prior CIA torture of the defendants — abuse that a panel of senior military officers recently denounced as a “stain on the moral fiber of America” and a “source of shame” for the United States. As was clear from a Senate Judiciary Committee hearing last month, there is bipartisan consensus that the commissions have failed to achieve accountability for anyone. The only way forward is to negotiate the resolution of those cases. Whether that will happen is up to the Biden administration, which refused to send anyone to the hearing to discuss the issue or Guantánamo closure policy.
For many who don’t follow Guantánamo closely, the prison is ancient history. They assume it was closed by Obama. I wish that were so. Guantánamo never should have been opened, and the truth is that I never imagined 16 years ago devoting most of my legal career to its closure.
Many people ask why I continue after so many years. In their minds, perhaps, pursuing Guantánamo closure is Sisyphean. The answer is simple: Guantánamo still exists, and there are 39 men still detained there without due process of law. I still hope that one day Guantánamo is closed, but until that happens, I will not give up.