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. In each subsequent year, I have returned to Guantanamo many times and represented dozens more 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.
Although this notorious military installation has seen a lot of change since the arrival of the first Afghan planeload, a generation ago it still retains the lawlessness that gave rise to it and the human suffering it has caused. 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. My co-counsel, our interpreter, and I were met by a large number of U.S. military personnel with guns and K-9s after a rough flight to the naval base on a decrepit charter plane. Over the next few days we were repeatedly searched, had our client meetings disrupted for no apparent reason, and were escorted around like unruly 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 when there was excessive secrecy. We did not know who was detained at Guantánamo; men were called by internment serial numbers, not their names. We found out who was being held slowly when our clients showed up at meetings with lists of men in nearby cells, who wanted lawyers to challenge their indefinite imprisonment or to call their families to tell them 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.
These stories were discredited in 2012, fast-forwarding to 2012. 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 an established practice. It had become part and parcel of American culture, as I wrote it. It had reached a certain level of normalcy. This was a relief for those of us who had traveled to the prison for so long. As far as some of the new, younger guards were aware, Guantánamo had always existed. Defense lawyers were no longer unusual or unwelcome at this base. The Supreme Court had since established the right of detained men, to challenge their detention in courts. This, if anything, allowed them to continue access to lawyers like mine.
Although secrecy still predominated (as it does today), particularly surrounding “high-value” detainees like my clients Majid KhanAnd Guled Duran, who were transferred to Guantánamo from secret CIA detention in September 2006, we now had freer access to the detained men. We fought for their rights and won, at least initially. 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 around the world to encourage allies of the United States 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. He was unable to get momentum back toward closure for two years after transfers were stopped. A widespread hunger strike at the prison helped him refocus his efforts during his second term. The result was clear: The remaining men who had cheered Obama’s election began to lose hope. I could see their pain in the eyes my Algerian client. Djamel Ameziane, whose approval was long kept secret from the public by the government for transfer. Ameziane was among the few who were able to escape the prison when transfers resumed in the latter part of 2013. Others were not so fortunate. Even though transfers resumed in late 2013, Ameziane was one among the fortunate to be released from prison.
Today, 39 men remain held indefinitely at Guantánamo, despite the end of the Afghanistan conflict in which many of them were ostensibly apprehended. Twelve men are currently involved in military commission proceedings. Majid Khan will finish his sentence in February and then must be transferred. The remaining 27 people are still in custody, some of whom were approved unanimously to be transferred more than a decade earlier 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 about what I wrote a decade back about these men. They have not lost their faith. 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. While the men who remain may be deeply saddened by their fate, most still have a hope that they will one day be free.
It is up to President Biden to decide if that dream will come true. As with two of his three predecessors in the Oval Office, he says he is committed to closing Guantánamo as a matter of policy. The Biden administration, however, has not made significant progress toward this goal unlike his predecessors. 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 evident from a Senate Judiciary Committee hearingBipartisan consensus was reached last month that the commissions had failed to hold anyone accountable. Negotiating the resolution of these cases is the only way to move forward. 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 believe it was closed by Obama. I wish it 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 wonder why I keep going 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.