End 19 Years Of Injustice

Lee Wolosky, Former Envoy for Guantánamo Closure, Calls on President Biden to Close the Prison

Witness Against Torture activists call for the prison's closure outside the Supreme Court on Jan. 11, 2017 (Photo: Andy Worthington).

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By Andy Worthington, May 13, 2021

It’s now two weeks since the end of the first 100 days of the Biden presidency, when there was a short flurry of mainstream media interest in the prison at Guantánamo Bay, which has been largely ignored by the Biden administration since taking office, except for brief mentions of embarking on a "robust" review of the prison’s operations, and an "intention" to secure its closure.

To mark Biden’s first 100 days, we cross-posted an op-ed written for The Hill by Anthony Lake, national security adviser to President Clinton from 1993 to 1997, and our co-founder Tom Wilner, who represented the Guantánamo prisoners in their Supreme Court cases in 2004 and 2008.

We're following up on that article with another cross-post, of an op-ed written for the New York Times by Lee Wolosky, the Special Envoy for Guantánamo Closure under President Obama, from July 2015 until the end of Obama’s presidency, who, as Karen Greenberg explained in a 2017 article, "The Forever Prisoners of Guantanamo," secured "the release to various willing countries of 75 prisoners, nearly 40% of the Gitmo population Obama had inherited."

Wolosky, who also served on the National Security Council under Presidents Bill Clinton and George W. Bush, brings a government insider’s perspective to the ongoing national shame of Guantánamo’s continued existence, urging President Biden to close the prison not only as a follow-up to his recent promise "to fully withdraw U.S. troops from Afghanistan," which he describes as "a significant step" toward "extricating the United States" from "its longest war," but also to extricate the U.S. from "massive national security architecture defined by the threat of foreign terrorism," whose scale, he notes, shocked him when he took the Special Envoy post in 2015, having "left the National Security Council's counterterrorism directorate in the weeks before 9/11."

As well as recognizing Guantánamo as "a recruitment tool for extremists and a blot on our national character," Wolosky recalls being "shocked by the bureaucracy of thousands of government employees built around Guantánamo," in which "[h]undreds of millions of dollars were being spent annually to maintain the facility," adding that this was "just one small component of the global war on terror."

Explicitly, he states that "[t]he large, unwieldy federal counterterrorism bureaucracy must be trimmed," with resources redirected to other threats from abroad, as well as "[t]he increasing threat from domestic extremism," which "has been far more lethal to Americans in recent years than foreign terrorism."

Specifically focusing on Guantánamo and the 40 men still held, Wolosky calls for the immediate release of the six men still held who were approved for release by high-level U.S. government review processes, for the 12 men in the military commission trial system to be moved to the U.S. mainland, and for the 22 others — the "forever prisoners" held indefinitely without charge or trial — to also be released, "subject to the negotiation of suitable security arrangements with other countries, including possible foreign prosecution."

On this latter point, he specifically mentions the case of "the Kenyan detainee Abdul Malik, suspected of committing two terror attacks against Israeli targets in Mombasa, Kenya, in 2002, killing 13 people," who, he says, "should be prosecuted in Israel or Kenya," because the alleged attacks "neither targeted Americans nor took place on U.S. soil."

Malik’s lawyers, at Reprieve, disagree with the U.S. government’s suspicions regarding their client’s alleged involvement in the attacks, but it is reasonable to expect that the military and intelligence services will be looking for ways to prosecute at least a handful of the 22 "forever prisoners" who have not, to date, been charged, despite having been held for between 13 and 19 years.

What is crucial for all parties to understand, however, is that, with the 20th anniversary of the opening of the Guantánamo prison looming, in January 2022, it is no longer acceptable for anyone to continue to be held without being charged, and it is commendable that both Wolosky, and the 24 Senators who recently wrote to Biden urging him to close the prison, recognize that the continued imprisonment of anyone without charge or trial is fundamentally unacceptable.

Wolosky’s call for Guantánamo’s closure ought to carry considerable weight within the administration, precisely because of his former role as the Special Envoy for Guantánamo Closure under Obama. For better or worse, the Envoy’s role was deeply pragmatic, rather than idealistic. The former prisoners whose release he negotiated were not always well-served by their former captors — as has been made abundantly clear in the transfer of former prisoners to the UAE, who have been subjected to ongoing imprisonment in unacceptable conditions rather than being granted the release that they were promised — but while those mistakes should not be repeated by Biden when it comes to resettling prisoners in third countries (primarily, the Yemenis still held, whose repatriation has long been ruled out across the entire political spectrum in the U.S., because of security concerns), Wolosky’s experience of what is possible is significant.

Wolosky’s op-ed is cross-posted below, and I hope you have time to read it, and will share it if you find it useful.

Biden Has a Chance to Remedy One of Obama’s Biggest Regrets
By Lee Wolosky, New York Times, April 27, 2021

President Biden's decision to fully withdraw U.S. troops from Afghanistan is a significant step toward extricating the United States not only from its longest war, but also from a massive national security architecture defined by the threat of foreign terrorism.

He should now take the next step and close the detention facility at Guantánamo Bay. Its costs to America — both reputational and financial — are exorbitant, and the facility remains a recruitment tool for extremists and a blot on our national character.

Over the past 20 years, the United States has spent trillions of dollars fighting foreign terrorism and built a formidable counterterrorism apparatus aimed at that threat. I remember returning to government in 2015 as President Barack Obama's special envoy for Guantánamo closure, 14 years after I left the National Security Council's counterterrorism directorate in the weeks before 9/11. I was shocked by the bureaucracy of thousands of government employees built around Guantánamo, just one small component of the global war on terror. Hundreds of millions of dollars were being spent annually to maintain the facility a short distance from our shores.

Mr. Biden must also take a close look at the enormous resource commitment that prevented another 9/11-like attack on the United States and reduced the threat posed by foreign terrorist organizations. The large, unwieldy federal counterterrorism bureaucracy must be trimmed. Resources and diplomatic expertise should be redirected to counter today's most pressing geostrategic threats, such as those posed by China. The increasing threat from domestic extremism deserves more attention, as well; it has been far more lethal to Americans in recent years than foreign terrorism.

Guantánamo is a remnant of the era now finally ending. The threats to U.S. security surrounding its creation no longer exist, and the remaining detainee population is increasingly geriatric and unlikely to return to the fight. (The oldest detainee is 73 years old.) The facility is crumbling, necessitating the recent relocation of high-value detainees from one building to another.

Mr. Obama has said that his failure to take decisive action to close the facility at the beginning of his first term was one of his most significant regrets. His administration did come close to doing so, transferring out of U.S. custody virtually all the detainees the U.S. government determined were eligible to leave at that time. Yet efforts to close Guantánamo were hampered by a transfer ban, approved by Congress as part of a defense-spending bill and signed by Mr. Obama despite his misgivings. The law purports to restrict the transfer of the facility's detainees to the U.S. mainland for any purpose. The legislation is of dubious constitutionality because it infringes on the president's constitutional powers as commander in chief to make operational decisions concerning wartime prisoners as he sees fit — a point Mr. Obama made.

President Biden must order the remaining detainees out of Guantánamo despite the transfer ban. Forty detainees remain, including 12 who are subject to military commission proceedings or have pleaded guilty. The remaining 28 could be transferred out of U.S. custody, subject to the negotiation of suitable security arrangements with other countries, including possible foreign prosecution.

Six detainees have been approved for transfer and should be released from U.S. custody immediately. For the remainder, it's hard to remember why some of them ended up in U.S. custody, or why they should remain there. Consider the Kenyan detainee Abdul Malik, suspected of committing two terror attacks against Israeli targets in Mombasa, Kenya, in 2002, killing 13 people. These were horrible acts of terrorism, but ones that neither targeted Americans nor took place on U.S. soil. Nonetheless, he has been held at Guantánamo for 14 years. He should be prosecuted in Israel or Kenya. Other detainees are also subject to the criminal jurisdiction of other countries or could serve U.S. sentences abroad. The United States should not be the world's jailer of first or last resort.

Those who cannot be transferred out of U.S. custody at this time, including detainees awaiting military commission trials, should be moved to the federal supermax prison in Florence, Colo., or to military bases in the U.S. or abroad. The federal prison system has an unblemished record in securely incarcerating those suspected and convicted of acts of terrorism, and at far less cost than the over $13 million per detainee per year at Guantánamo. (It costs around $78,000 annually to house an inmate in a supermax.)

The United States is finally leaving Afghanistan. We should also finally close Guantánamo. As with ending the war, that will be possible only with the boldest presidential leadership.