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20 years in, what's next for Guantanamo Bay and the 39 prisoners still there

SACHA PFEIFFER, HOST:

The U.S. military court and prison in Guantanamo Bay, Cuba, tend to be forgotten places. Last week was the 20th anniversary of the first prisoners arriving there. They were suspected terrorists rounded up after the September 11 attacks. And last week, the Biden administration cleared another five prisoners for release. At this point, roughly half the 39 men there have been determined safe to be let go but are still being held. That's because the U.S. must find countries to take them, and the Trump administration eliminated the government office that used to negotiate those deals. But last summer, the Biden administration did release one prisoner to Morocco. So I asked Karen Greenberg, who directs Fordham University Law School's Center on National Security and writes often about Guantanamo, if that indicates to her that behind-the-scenes work is going on to send prisoners home.

KAREN GREENBERG: You know, this is something I ask myself all the time. And with my rose-colored glasses always like, yes, please let us know that there are things going on quietly behind the scenes. I certainly hope that there's a plan to actually get these people transferred and released out sooner rather than later.

PFEIFFER: Would you recap for us the arguments for and against keeping Guantanamo open?

GREENBERG: I believe it should've been closed a long time ago. The reasons for keeping it open are twofold, basically. One is that there's a military commissions process that is trying some very important terrorism cases, including the 9/11 trial of the co-conspirators alleged to have helped bring about 9/11. The second has to do with those who have been in indefinite detention. One reason is that they're deemed too dangerous to release. The other one is that, once they are cleared for release, the negotiations that have to go on are exquisitely detailed that have to do with human rights concerns for the detainees, their safety and national security concerns for the United States. So those are the reasons that it's kept open.

Reasons for closing it are it violates American law. It violates military law. And it violates international law. We do not hold people in indefinite detention, particularly once a war is over. I would say another reason for not keeping it open is that the idea that the federal courts can't try these terrorists is such a vulnerability. And the basic reason that we haven't been able to try these in federal courts at Guantanamo is the fact that these individuals were tortured and that the evidence that we presented would be tortured, that witness testimony would be tortured and that the defense is constantly bringing legitimate claims about what the torture has done to the evidence, to their clients and to the entire context of the military commissions. And so I think that, in a way, we have turned a page with Biden. And we can now put these cases to rest and begin to move on.

PFEIFFER: To close Guantanamo, President Biden may have to announce that he's pulling the plug on the military trials there. He may also have to announce that Khalid Sheikh Mohammed and the other 9/11 defendants will be allowed to plead guilty in exchange for prison rather than pursuing a death penalty trial. That would be very politically controversial. How likely do you think that is to happen?

GREENBERG: Let me tell you, I think it's much less controversial now than it was in past years. I mean, I do think we are moving on from the 9/11 era, not just from the pull out of Afghanistan but in other ways as we shift to issues like pandemic, climate change. I do think this is very much in the rearview mirror in terms of, you know, the active war on terror that was after 9/11.

PFEIFFER: The cost certainly is a giant issue for many people who think it should be closed. How much does that factor into your thinking?

GREENBERG: I think it factors in because it's a - it's something that you can't get away from, $13 million plus per detainee per year compared to less than $100,000 per prisoner in the United States, you know, as an average. The cost is astronomically more than any dollar value that you could put on it.

PFEIFFER: For people who don't pay much attention to Guantanamo, why is it proving so hard to close the place?

GREENBERG: Because the countries from which they came are in disarray, and the United States has made the presumption that it's dangerous to return them there and because we tortured those who are being tried in the military commissions. And it's really just a question of not being willing to trust ourselves that we can defend ourselves in the future with the immense intelligence, law enforcement and military capacity we've built up since 9/11.

PFEIFFER: Do you actually expect Guantanamo to close before Biden leaves office?

GREENBERG: I always expect Guantanamo to close.

PFEIFFER: If not in this administration, you hope eventually?

GREENBERG: It's going to have to be this administration. It absolutely has to be. And it's worth taking the political gamble. I know it's not at the top of Biden's list, but it's also not at the top of other people's list to oppose it.

PFEIFFER: Karen Greenberg is director of the Center on National Security at Fordham University School of Law. Thank you very much.

GREENBERG: Thank you, Sacha.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.