Petty Officer 1st class Shane T. McCoy/US Department of Defense Handout via Reuters
- In July, the Biden administration released a 19-year detainee from Guantánamo Bay.
- Biden has said he hopes to close the military prison in Cuba, where 39 people remain incarcerated.
- But closing it is complicated by concerns over releasing prisoners, and the military's court system.
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Last month, the Biden administration released a Moroccan man who had been held at Guantánamo Bay for nearly two decades without ever being charged with a crime.
Abdul Latif Nasser arrived at the Guantánamo Bay detention camp in Cuba in 2002. The US accused him of being involved with the Taliban, but charges were never brought against him and he was cleared for release in 2016.
It would be another five years until he was transferred out of the camp and repatriated to his home country.
Nasser was one of many detained at Guantánamo without ever being charged with a crime. Of the 39 detainees that remain, 27 are held as Nassar was: as law-of-war detainees without charge or trial, according to The New York Times.
"They're called forever prisoners, because they'll be held forever," Mark Denbeaux, a lawyer and law professor at Seton Hall University School of Law, told Insider, referring to those who have not been cleared for release.
His client, Abu Zubaydah, the first person to undergo torture at the hands of the CIA's enhanced interrogation program, is one of them.
Denbeaux, who served on the Obama transition team and was focused on the closure of Guantánamo, called the recent release "very significant." He said he is confident President Joe Biden wants to continue the effort started by former President Barack Obama and close the Guantánamo Bay detention camp for good.
But between the forever prisoners and those awaiting trial, including some accused of involvement in the terrorist attacks of September 11, 2001, it's not a straightforward task.
Who the 'forever prisoners' are
The term forever prisoners refers to detainees who have not been charged and are never expected to face trial, but that the government deems too dangerous to release.
Kevin Powers, a lawyer, professor and director of the Cybersecurity Policy and Governance Program at Boston College, explained the detainees are not considered regular prisoners of war. Instead, they are classified as unlawful combatants, or alien unprivileged enemy belligerents.
Powers also worked as a legal adviser for the Department of Defense on some cases at Guantánamo Bay from 2011 to 2013.
"The reason they're unlawful combatants is because they don't follow the rules of combat under the international rule of war," Powers told Insider. "So they're not entitled to the rights of prisoners of war."
Unlike with regular prisoners of war, he said, the US "can hold them without bringing charges or anything like that until the end of hostilities."
So because the US is still considered at war with Al Qaeda and its allies, the government does not need to charge the detainees and can continue to hold them under international law of war as long as the war is ongoing.
Cleared for transfer but still awaiting release
Since 2013, a panel of six government agencies, including the CIA and the FBI, has occasionally reviewed detainee cases and authorized people for release. Acting similarly to a parole board, the Periodic Review Board has already cleared several detainees since Biden took office.
Of the 27 prisoners currently held without charges, 10 have been recommended for transfer, but even then their releases are delayed.
Upon release, detainees are typically sent to countries that have agreed to keep them under certain security arrangements required by the US. So before the releases can happen the US must come to a diplomatic agreement with another government that is willing to take them, be it the detainee's home country or somewhere else entirely.
Secretary of State Antony Blinken told Congress in June the Biden administration is looking into appointing someone to work full-time on arranging the transfers and closing Guantánamo, The Times' Carol Rosenberg reported.
Detainees accused of war crimes await trials under a military commission system
Others at Guantánamo have been charged with war crimes and are awaiting trial, some for many years.
Denbeaux said freeing the "forever prisoners" and those cleared for release is likely a simpler task than addressing those who have been charged with crimes.
That's largely because the prisoners are not on trial in a US federal court. Under the Military Commissions Act of 2009, Guantánamo detainees are charged and tried by a military commission under a legal system established and run by the US military.
"Our American court systems work very, very well," Denbeaux said, adding they were formed over the course of hundreds of years. But he said the military basically invented a new court system that still has a lot of kinks to work out.
Powers echoed those remarks. He commended the judges and lawyers working on the cases but said he didn't think the current system was set up for success when it comes to the Guantánamo detainees.
"The federal courts are used to handling big litigations like this. The military commissions are new," Powers said. "It was kind of like building the plane while you're trying to fly it. It doesn't work."
Trial delays for the five men accused of plotting the 9/11 terrorist attacks
The most apparent example seems to be the case of Guantánamo's most notorious prisoners, the five men accused of being involved in planning the September 11, 2001, terrorist attacks on the US that killed nearly 3,000 Americans two decades ago.
The men, captured in 2002 and 2003, are accused of directing or assisting the 19 hijackers who crashed four passenger planes on US soil within hours of each other on that day. Two flew into the World Trade Center, one crashed into the Pentagon, and another crashed into a Pennsylvania field. The charges include terrorism, murder in violation of the law of war, and conspiracy, which, if convicted, would result in the death penalty.
Despite the suspects being arraigned in 2012, the trial has been plagued by years of delays. Under the military commission system, prosecutors and defense attorneys have been arguing over what evidence is admissible in court, what can be withheld from the defense for security reasons, and even what laws apply, according to The Times.
The defense has argued testimony from FBI interrogations, the ones that did not include tactics like waterboarding or sleep deprivation, should be inadmissible because their clients were conditioned by torture to say what interrogators wanted to hear.
But Powers said the location alone may be the biggest reason the trials have progressed so slowly. The judges and lawyers are typically commuting to Cuba, a tropical island with unpredictable weather, for hearings and motions. He said a hearing may be held for a case once every other month.
If everyone, the judges, lawyers, and detainees, were all in one location, either in Cuba or in the US, "you could have regular motion practice every day," he said.
But US politicians have long rejected the idea of trying or transferring the detainees onto American soil.
The trial has also been delayed by personnel turnover and the COVID-19 pandemic, The Times reported. And whenever the trial does happen, it could then go through years of appeals, potentially all the way up to the Supreme Court.
All things considered, the closing of the detention camp at Guantánamo Bay appears to be far out of reach.