Home Posts Why Hasn't Biden Released Gitmo Detainees Who Have Been Cleared For Release For Years?
Why Hasn't Biden Released Gitmo Detainees Who Have Been Cleared For Release For Years?
Joe Biden

Why Hasn't Biden Released Gitmo Detainees Who Have Been Cleared For Release For Years?


Six months into his presidency, President Joe Biden's administration has not released a single person from Guantanamo Bay, despite vague pledges from the White House, and the delayed releases have raised concerns among advocates and lawyers for the men that Biden will not prioritize closing the infamous military detention center.

Eleven of the 40 men still detained at Guantanamo have been cleared for release after an arduous government review process, which means they are considered safe to send home or to another country, pending security assurances from the receiving country; several have been cleared for years, with no explanation for their continued, indefinite imprisonment without charge.

During President Barack Obama's final weeks in office in 2016, his administration rushed to transfer cleared detainees out of Guantánamo before the inauguration of President Donald Trump, who promised during his campaign that he would keep the detention facility open and fill it with more people. The cleared men left behind by Obama hoped that Biden would act quickly on their release.

“Everyone thought Obama was going to close this place, and so my client was hopeful that he was going to get out because he had been cleared for so long,” said George Clarke, who represents Tofiq al-Bihani, who has been cleared for release since 2010.

When asked why none of the cleared detainees have been transferred since Biden took office, a State Department spokesperson said in an email that the agency “continues to worry about it.”

According to NBC, the Biden administration is taking an “under-the-radar” approach to closing Guantanamo in order to reduce political fallout.

“Part of the problem is that, for many of these people in certain positions, Gitmo continues to exist only in the conceptual policy realm,” a government official who used to work on Guantanamo policy told Stardia in an interview. “They lose sight of the fact that we’re talking about people. So it’s, ‘OK, go slow, let’s primarily focus on the politics and then on the policy.’ And that’s unfortunate.

Several men have been cleared for release by the Periodic Review Board, a flawed parole-style system designed to determine which of the uncleared men can safely be transferred to another country; however, it is unclear when or if the people who have been designated safe to release will actually leave the prison.

Al-Bihani was supposed to be transferred to Saudi Arabia in 2016, along with nine other Yemeni detainees, as part of Obama's end-of-term push to depopulate Guantánamo. However, on the day of the transfer, al-Bihani was not allowed to board the plane for reasons that have yet to be revealed.

Two other cleared men, Abdul Latif Nasser and Sufyian Barhoumi, were on track to return to their home countries of Morocco and Algeria, respectively, in 2016, but after a series of bureaucratic delays, the Obama administration chose to turn their cases over to the Trump administration, which abandoned efforts to send the men home.

As the men languish, Biden has yet to pull many of the administrative levers required to permanently close the prison. For example, Obama established a special envoy for Guantanamo closure at the State Department — a point person within the government who ideally would work to unite various bureaucratic agencies toward the goal of permanently closing the prison. That role was eliminated under Trump, and B

In the absence of a Guantánamo closure office within the State Department, the Bureau of Counterterrorism is currently in charge of negotiating transfer agreements. However, multiple defense lawyers who represent men who have been cleared for release say they have no one in the government they can contact for information about their clients' cases.

In 2016, Nasser was so close to returning to Morocco that his family had painted a room for him and arranged for him to work at his brother's company, and his sister had even begun looking for a potential bride for him. At the time, a State Department official told Nasser's lawyer that he was "absolutely going home."

After Trump's surprise victory in the 2016 election, Obama administration officials knew that whoever they left behind in Guantánamo would likely remain there for at least four years. Congress requires the Pentagon to notify lawmakers 30 days before any transfer, which means that if transfer arrangements were not finalized one month before Trump's inauguration, it would be much more difficult.

The security agreement between the United States and Morocco was not finalized until days after the deadline, and Carter, the defense secretary at the time, refused to sign off on the transfer, preferring to leave the decision to his successor.

Knowing that their chances of release were nearly nil under Trump, Nasser and Barhoumi filed an emergency motion in federal court, asking a judge to order their release. “If Petitioners are not transferred within the next week by the outgoing administration, they will likely not be transferred from Guantánamo for at least the next four years,” their liason said.

His sister dies just as he is about to leave for home, and I believe this emotionally depleted him.

Abdul Latif Nasser's lawyer, Shelby Sullivan-Bennis

The Justice Department could have easily backed down and chosen not to fight for the authority to imprison two men the administration had worked to free, but Obama's DOJ took the opposite side and won.

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“It was worse than when he was arrested,” Nasser’s brother Mustafa told Stardia in a 2018 interview in his home. “He was depressed; he was hopeless.”

“He was saying that he was lucky enough that he hadn’t lost anyone that close to him while being detained — and that that in and of itself was a miracle,” his lawyer Shelby Sullivan-Bennis said in an interview. “And then, right before he expects to go home, his sister passes. I think that really emotionally bankrupted him.”

The White House and the State Department both declined to comment on why Nasser and Barhoumi, ostensibly the easiest men to release, remain at Guantanamo. “It’s just shameful that they are still there,” a government official said.

Nasser is widely expected to be transferred out of Guantanamo in the near future as the Biden administration works to demonstrate progress ahead of the 20th anniversary of the prison’s opening. “That would be welcome — but it would not be grounds for the Biden administration to pat themselves on the back and say, ‘See? We’re making substantial progress toward closing Guantanamo,’” said Wells Dixon, a human rights lawyer.

“That isn't much of a step forward.”

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