Second Six-Month Check-Back : The Biden administration minimally needs to revise its use of drones for targeted killings of any sort, anywhere, so that they become a rarity, not the commonplace they've been. The president must further insist on transparency in reporting on the uses of drone warfare and its casualties. He and his key officials must create a policy in accordance with both domestic and international law.
Guanta'namo
Last (but very much not least) on my list, it's time to close the Guanta'namo Bay detention facility. This past January was the 19th anniversary of its opening, the moment when the first prisoners from the war on terror were flown to Cuba, offshore from American justice and away from the eyes of the world. In 2008, while George W. Bush was still president, Gitmo received its last inmates. Twelve years ago, Barack Obama pledged to close it within a year.
When Obama left office in January 2017, he had at least made some headway towards its closure, though failing ultimately to shut it down. Gitmo's population had been reduced from 197 prisoners to 41, thanks to the efforts of the Office of the Special Envoy for the closure of Guanta'namo, which Obama had set up in 2013, and to its head, Lee Wolosky. He aggressively pursued the mission of transferring detainees out of that facility during the final 18 months of Obama's presidency. One-third of the remaining prisoners were facing charges from, or had already been convicted by, the military commissions that Obama revived in 2009 and that made remarkably little headway towards trials, no less resolutions, during his two terms.
On the campaign trail in 2016, Trump infamously pontificated that he would "load [Gitmo] up with some bad dudes." In actuality, no new detainees would be transferred to the facility during his time in office. Meanwhile, military commission prosecutors proved unable even to mount what should have been the centerpiece case of the Guanta'namo years the trial of the five men, including Khalid Sheikh Mohammed, accused of being co-conspirators in the 9/11 attacks.
As with the AUMFs and the drone-strike policy, there are, in the early moments of the Biden years, some encouraging signs that closure could once again become a priority. Secretary of Defense Lloyd Austin, for instance, expressed his thoughts on the subject in questions submitted to the Senate Armed Services Committee during his confirmation hearings. "It is time," he wrote, "that the detention facility at Guanta'namo Bay close its doors." Similarly, Dr. Colin Kahl, Biden's nominee for undersecretary for policy at the Pentagon, told Congress, "I believe that it is time to close the DoD detention facility at Guanta'namo Bay responsibly." President Biden has also signaled his support for closure, claiming that he wants it shut by the end of his presidency. And there has already been an announcement that the National Security Council is looking into plans to do so.
Meanwhile, after years of delays, reversals, governmental misdeeds, and the dark shadow cast over cases in which torture has been an integral part of the evidentiary record, some movement does seem to be underway. The day after Biden's inauguration, for instance, the administration set the date for a trial that has been stalled for years that of three Southeast Asian men accused of bombings in Indonesia in 2002 and 2003. All three have been in U.S. custody since 2003, first at CIA "black sites" and, from 2006 on, at Guanta'namo. However, as of February 2nd, the date for that trial had already been postponed, due to Covid-19.
Third Six-Month Check-Back: It's imperative that the Biden administration shut down Guanta'namo and the sooner the better. The catastrophic cost of that detention facility is hard to overestimate. It continues to stain the American reputation for fairness and justice worldwide and is the ultimate reminder of the trade-off made between security and liberty in the war on terror. Until Guanta'namo closes, the door to detention without due process and so to an alternative judicial system outside the law, as well as to unlawful secret interrogations and brutal treatment remains open. And after all these years, six months should be more than long enough to at least put in motion, if not complete, plans for that closure.
It's one thing to have good intentions, and quite another to realize those intentions in policy. While I understand the concerns of the early critics of Biden's developing war-on-terror-related decisions, my own preference is for a modicum of patience though nothing like an open-ended time frame. After all, it's way beyond time to consign those war on terror deviations from law and from anything like reasonable norms of action to the history books.
Copyright 2021 Karen J. Greenberg
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