Biden hopes to close Gitmo, but where does he send the bad guys?

President Biden, similar to former President Barack Obama 12 years ago, is hoping to close the military prison for terror suspects and enemy combatants at the United States Naval Station Guantanamo Bay in Cuba. But unlike Obama, he’s not making it a day-one priority.

In one of his first acts as president, Obama signed a 2009 executive order mandating that the detention facility, which he saw as a costly failure both in terms of wasted tax dollars and tarnished U.S. prestige abroad, be shuttered within a year.

Obama was stymied by Congress, which that year and every year since has banned the transfer of any prisoners to the U.S., Libya, Somalia, Syria, or Yemen.

Still, through a laborious process, he managed to whittle the inmate population at Guantanamo Bay from 240 in 2009 to just 40 today by sending most of the low-ranking foot soldiers to other countries.

Since taking office, Biden hasn’t spoken publicly about Guantanamo Bay’s future, but his defense secretary revealed his plans in written responses provided to the Senate Armed Services Committee before his confirmation last month.

“My understanding is that the Biden-Harris administration does not intend to bring new detainees to the facility and will seek to close it,” retired Gen. Lloyd Austin wrote in his submitted testimony. “I believe it is time for the detention facility at Guantanamo to close its doors. If confirmed, I would direct my staff to work with other administration officials to develop a path forward for the remaining 40 detainees at the facility.”

Austin pledged to “reinvigorate” what is called the Periodic Review Board process, which assesses detainees to determine if they still pose “a continuing significant threat” to the U.S. if they are sent to a suitable country that will have them and guarantee their security.

The easiest, cheapest path to closing Guantanamo Bay — if Democrats who control Congress and the White House wanted to force the issue — would be to amend the National Defense Authorization Act for fiscal year 2022 to allow the remaining prisoners to be moved to a supermax prison in the U.S., such as the one in Florence, Colorado, where men convicted of terrorism crimes in federal court often end up.

The Guantanamo Bay facility, parts of which are badly in need of repairs, costs upward of $450 million a year to run, making the per-prisoner cost roughly $11 million. A typical supermax prison in the U.S. costs $100,000 a year.

The fear among critics is that while the detainees already have the right to challenge their detention and trial by military commission under a 2004 Supreme Court decision, holding them in a U.S. prison would give them greater access to federal courts, with the possibility that they might even win release.

“Many of us put our lives on the line to prevent these terrorists from ever returning to the battlefield. Some of us even sustained permanent wounds,” nine Republican House members who fought in the war on terror wrote in a letter to Austin. “There is no acceptable reason to bring terrorists to the homeland and risk release due to a legal technicality.”

“For years it has been a matter of debate whether Guantanamo prisoners should have the same evidentiary standards as American citizens through the United States judicial system,” they wrote. “It would be a mistake to risk acquittal of a known terrorist because of a prosecutorial error, a technicality, or a miscellaneous legal loophole.”

“Closing Gitmo is not only bad policy — it’s dangerous,” said Florida Rep. Michael Waltz, the first member of the Green Berets elected to Congress and one of the signers of the letter.

With the Democrats’ razor-thin margin in the Senate and considering the long-standing bipartisan congressional opposition to trying terror suspects in federal courts, the prospects for relocation of the remaining prisoners to U.S. soil seem dim — not to mention the problem of so-called “forever prisoners,” who are being held in indefinite detention without charges or prosecution because they are deemed too dangerous to free.

Of the remaining 40 prisoners, 14 are so-called high-value suspects, such as Khalid Sheikh Mohammed, the accused mastermind of the 9/11 attacks, and some of his co-conspirators. Nine are facing or have been convicted of war crimes charges, and six have been approved for transfer to other countries, if countries can be found to take them.

That leaves roughly 25 facing what is essentially life in prison without ever being charged.

“For almost two decades, the United States has denied justice to the dozens of men the country has kept detained at Guantanamo Bay indefinitely, without charge or trial. It’s time to give up the illusion that either true justice or any semblance of a fair trial will result from these fundamentally unfair proceedings,” said human rights group Amnesty International in calling for Biden to close it. “If the United States has admissible evidence that internationally cognizable crimes were committed, it can bring those claims in a civilian court, if a fair trial is even possible after nearly two decades of unlawful detention and ill-treatment.”

“There’s a view from some that if you can’t be prosecuted, you shouldn’t be held, you know, you’re not dangerous if you can’t be prosecuted, and so, anyone who can’t be prosecuted should be released. And that just turns out not to be true,” said Matt Olsen, who led the Guantanamo Review Task Force under Obama.

In a podcast interview on MSNBC, Olsen said the U.S. has plenty of evidence against the men, but it’s mostly from intelligence sources that cannot be used in court.

“Remember, these individuals, for the most part, picked up on the battlefield, right? There’s no chain of custody on documents. There’s statements that are not admissible,” he said. “There could be very strong intelligence information from other sources, who would never testify. So there was no way of bringing a case against them, even though the evidence was very strong.”

Those prosecutable detainees should be held in federal prisons, argued Olsen, who calls maintaining essentially a federal prison on a naval base in Guantanamo Bay “a complete anachronism at this point.”

The fact is that in its 19-year history, the military prison at Guantanamo Bay was never a first-class detention facility.

What began in January of 2002 under former President George W. Bush as a makeshift facility, with cages constructed with chain-link fencing, was eventually upgraded into brick-and-mortar buildings, with rudimentary facilities and small concrete cells, along with a courtroom for military trials.

Congress has consistently turned down requests to fund a new high-security prison building that would have cell doors wide enough for wheelchairs or to fund more than basic repairs to the old, decrepit Camp Seven, where the high-value prisoners are held… Via – The Washington Examiner

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