By Timothy Farrelly
Twenty years after opening its gates, the detention facility at Guantànamo Bay continues to stain the United States’ legitimacy as an arbiter of global human rights. The U.S. has jeopardized its ability to lead counterterrorism efforts and to criticize other states for human rights violations. Human rights abuses at Guantànamo, such as torture, have been exploited by extremist groups to be used as propaganda and recruitment tools. The heinous violations at Guantànamo warrant urgent attention from President Biden, who has already served under one administration that failed in its promise to close the facility. For the sake of the country’s credibility, national security, and his political reputation, Biden must develop a clear and ambitious strategy to close Guantànamo.
In the aftermath of 9/11, the Bush Administration’s response was a global “War on Terror.” Soon, the U.S. had captured a large number of suspected terrorists and looked to transfer them to its military base in Cuba, which is controlled by the U.S. government but not subject to the U.S. Constitution. As a result, the American government became responsible for gross human rights violations including indefinite detention without charge or trial, unfair trials, inhumane conditions, and torture (including waterboarding).
Consequently, the U.S. has severed its leverage to credibly respond to global human rights violations. The American government cannot expect other states to abide by international laws when it has blatantly violated them at Guantànamo. At the 62nd session of the U.N. General Assembly, President Robert Mugabe, Zimbabwe’s then-autocratic leader, exclaimed: “Can the international community accept being lectured by this man on the provisions of the Universal Declaration of Human Rights? Definitely not!” Other autocrats such as Vladimir Putin and Bashar al-Assad have exploited Guantànamo to justify and deflect attention from their own abuses. The U.S. must recognize its unique position as an arbiter of global norms, and when it deviates from its values, others will follow suit.
By committing abuses at Guantànamo Bay, the U.S. squandered much of the goodwill and sympathy afforded to it by the international community in the aftermath of the 9/11 attacks. Guantànamo has become a universal symbol of inhumane treatment and torture, one that has been used by terrorist organizations for propaganda and recruitment purposes. Al-Qaeda leader Ayman al-Zawahiri, stated in 2014: “They [prisoners] are not subject to those conventions by which America is bound in its treatment of the rest of humanity. This is the logic of power and arrogance. This is not about human rights; it is about the rights of the man who opposes Islam. It is about his rights when he is aggressing against a Muslim.” This rhetoric frames the U.S. as hypocritical and entices new recruits to fight against the West. By closing Guantànamo, the U.S. can stop nurturing malign propaganda that ultimately undermines American national security.
With that said, continuing to operate the detention facility is neither a suitable option for the U.S. nor for Biden who was party to years of empty promises of closing Guantànamo under the Obama Administration. His administration must be willing to face the political risks that come with closing Guantànamo for the sake of national security and the U.S.’s leverage in the international human rights regime, or else he will face even greater criticism for failing to close the facility during three terms at the highest levels in the executive branch. They should begin by reopening the State Department’s special envoy for closing Guantànamo, staffing it more robustly to oversee transfers of inmates and try the remaining prisoners that are still held without charge.
The first task of the special envoy should be to immediately facilitate the transfer of the detainees cleared for transfer but still in detention. Republican lawmakers challenge that returning detainees to their former countries provokes unnecessary risk for the U.S. They argue that an alarming number of former Guantànamo detainees re-engage in terrorist activities. In response, the State Department should consider the establishment of rehabilitation programs with partner states to ensure that individuals can re-adjust to society in their home countries, be financially secure, and offer medical care including mental health programs to aid former prisoners suffering from PTSD due to their torture at Guantànamo. The foremost objective of such programs will be to deter further extremist activities and lower the recidivism rates of former prisoners.
Second, the special envoy should do all in its power to immediately transfer inmates who have been convicted of terrorism to other high-security prisons whether in the US or other states willing and able to incarcerate them. The main challenge to these cases is that under international law, it is prohibited to transfer a person to another state where they will be subject to torture. To overcome this, the special envoy should work prudently to ensure that prisoners are only transferred to states where the rule of law will be upheld by the governing regime. In addition, they should consider implementing monitoring criteria to guarantee that the former detainees are no longer victims of torture.
Finally, the Biden Administration must establish fair trials for the prisoners remaining in law-of-war detention but have been neither convicted of crimes nor cleared for transfer, where the same rule of law that applies in U.S. courts is applied to the military commissions. It is not difficult to imagine that with credible evidence the U.S. will be able to convict any legitimate terrorist that poses a real national security threat. The Administration must pursue these trials promptly so that those convicted, and those found innocent, can be properly transferred.
Each year, Guantànamo’s purpose becomes less and less clear as more extremists exploit its legacy, and the country loses its credibility to affirm global human rights. All the while, President Biden will have to pay the political price of isolating portions of the electorate who value human rights if his administration fails to shut it down. The process of shutting down Guantànamo requires a significant amount of time and political capital. The President must take on this responsibility to safeguard U.S. security and its fundamental values. He cannot afford to let this issue pass on to a fifth administration, let alone one that will keep its gates open. The time is now for President Biden to shut down the U.S. detention facility at Guanànamo Bay.