"This is a long term war."
"This is a different type of enemy then we’re used to."
"And we're adjusting our thinking to the new type of enemy."
Days after the 9/11 attacks, President George W. Bush
launched the global war on terror.
In October 2001, he sent the military to invade Afghanistan
and hunt down members of al-Qaeda and its ally, the Taliban.
It also offered cash rewards to anyone who would help capture a terrorist.
Often enough money to change lives.
So, many in Afghanistan and Pakistan took advantage of the offer
and turned hundreds of men over often with little evidence.
The US sent those men to secret prisons called black sites.
Where they interrogated and tortured them.
But within a month, they started searching for a larger, permanent prison
to consolidate all these prisoners.
Eventually settling on this old Navy base in Guantánamo Bay, Cuba.
In January 2002, the first detainees began arriving.
One of them was Moath al-Alwi who spent the next two decades in this prison
because the US government deemed him too dangerous to be set free.
But they never charged him with a crime.
And he’s not alone.
Hundreds of men were imprisoned in Guantánamo.
Few were charged with a crime.
Some were tortured.
And none received a fair trial.
It’s a prison that's operated outside the bounds of law.
So, how did the US get away with this?
And why is Guantánamo Bay still open?
There are two myths about the people who were picked up.
One is that they are all hardened, capable terrorists.
The other is that they were all innocent shepherds.
This is Dan Fried.
He worked in the US foreign service for over 40 years
and was assigned to Guantanamo in 2009.
The conclusion I had is that there was kind of a bell curve.
At one low end, there were actually hardened terrorists.
Like this man, Osama bin-Laden’s personal secretary.
There were others that were sometimes petty criminals and drug dealers.
Not great people, but not criminal masterminds, not terrorists.
And the top of the bell curve were people just a little more involved
than what I just described.
At the other end were people who were swept up and shouldn't have been there at all.
Like a group of Uigher men.
Members of a mainly Muslim ethnic group who were fleeing persecution in China.
And they wound up in al-Qaeda camps and we didn't know what to do with them
and so they ended up in Guantánamo.
In fact, many detainees were put in Guantánamo based on little evidence.
Yet Bush officials often described them all as terrorist.
"I mean these are people who would gnaw through hydraulic lines of the back of a C-17
to bring it down.”
"Very, very dangerous people."
By 2003, there were nearly 700 Guantánamo detainees
and virtually none of them were charged with a crime.
"The American flag flies again over our embassy in Kabul."
"Terrorists who once occupied Afghanistan
now occupy cells at Guantánamo Bay."
The Bush administration chose Guantánamo Bay largely because of its unique location.
It was under US control, but it wasn’t technically inside the US.
So, they claimed US law wouldn’t apply to the detainees held here.
If they put them in a US prison, they'd have to either charge them with a crime
and put them on trial or release them.
In other words, under US law, prisoners would have ways to get out.
For bad reasons, they didn't trust the criminal justice system.
It gives too many rights to the prisoners.
There was a sense that the old rules had to be thrown out.
The US also claimed that international law didn’t apply to these detainees either.
Even though 196 countries, including the US, signed the Geneva Conventions:
a set of laws protecting prisoners of war.
But for those laws to apply, the US would have to define the detainees
as prisoners of war.
Then they couldn’t interrogate them.
And would have to release them as soon as the conflict ends.
We didn't want to give them those rights because we were so fearful of a new terrorist attack.
We wanted to interrogate and frankly
some parts of the US government interrogated through torture.
I mean, that's—fact.
So instead of charging them as criminals or calling them prisoners of war
the US made up a new term.
Unlawful enemy combatants.
The US claimed it could hold “unlawful, enemy combatants” without charges in Guantánamo,
indefinitely.
And the detainees couldn’t challenge it in court.
But the US could prosecute them, in a new court system, run entirely by the military.
These courts were designed to be complex, with rules that heavily favored the US government.
For example, the government could introduce evidence
without showing it to the detainee first.
This made Guantánamo Bay prison a “legal blackhole”.
The original sin is that we created an institution outside
and designed to be outside the rule of law.
"No more torture in our name."
"And shut it down and release everybody."
"Justice for Guantánamo detainees, now a core celebra among human rights activists."
World leaders, allied governments, and US politicians began calling for the closure
of Guantánamo.
Plus, Bush officials recognized that it was actually hurting the war on terror.
Gitmo was also a great recruiting tool.
There were all these terrorist videos about how evil the Americans were
and we have to fight back because they imprison people without any legal basis.
They torture people.
Eventually, the Supreme Court stepped in.
In a series of decisions, the Court ruled that Guantánamo detainees were entitled to
challenge their imprisonment in court.
It was clear the US would soon have to let many of these detainees out.
So, the Bush administration reviewed every case and set up a transfer process.
Pretty simple process. Yeah.
Move them back.
Mainly to Afghanistan.
Nobody asked a lot of questions.
Over a 5 year period, the Bush administration transferred 532 detainees
and only convicted 3 through the military courts.
5 detainees died in the prison.
Four of them were reportedly suicides.
That left 242 in Guantánamo when he left office
with some hope that the prison would close.
"Guantánamo will be closed, no later than one year from now."
On his second day in office, Barack Obama signed an executive order to close Guantanamo
within a year.
His administration split the detainees into three groups
and laid out a plan with more paths out.
The first group included about half the detainees
who would be transferred either to their home countries.
Or, for those whose home countries were too dangerous or unstable
the US would negotiate deals with other countries to take them.
Or they would be released to the US.
This was the plan for the Uigher men.
A second group would be tried as criminals in a US federal court.
Including five men who helped plan the 9/11 attacks.
But that still left a third group.
There was a category of people we didn't feel comfortable transferring
but without sufficient evidentiary basis to put them on trial.
This final group of several dozen would be moved to a super-maximum security prison
in Illinois.
Then Guantánamo could be closed.
It was a good enough plan.
It had risk.
But keeping Guantánamo open has risks too.
"Now I believe that any plan to close Guantánamo that includes bringing these terrorists into
the United States, Mr. President, is a mistake."
"To do so would be nothing short of an invitation for Al-Qaeda to operate inside our homeland."
"In my view, these men are exactly where they belong."
In Congress, Republican politicians fiercely opposed every aspect of the plan.
They pushed back against transfers and putting any detainees on trial in the US.
"It will make America a more dangerous place."
"And it will allow them the platform to spew their hateful ideology."
They even attacked the plan to move some into the supermax prison.
"You're also putting people who would then start plotting for their escape from the outside
in America's neighborhoods."
All of a sudden when Obama comes in, "Oh no, you can't let people go
because you're letting terrorists out."
By the spring of '09, this narrative was already set:
"The Obama administration: soft on terrorism”.
It's fair to ask tough questions.
What's not reasonable is making it impossible for Obama
when you didn't ask any hard questions about Bush.
Ultimately both Republicans and Democrats passed bills that blocked any Guantánamo
detainee from coming to the US for any reason.
Including for trial, imprisonment, or release.
Then the Obama administration folded.
They gave up at the first sign that it would take a lot of political capital to close Gitmo.
But y’all made a big deal of it.
You better mean it.
The Obama administration didn't mean it enough.
The only two options detainees had stayed in place but got much harder.
The military courts were extremely slow and ineffective.
3 convictions had been overturned by 2016.
And transfers became more complicated.
Many of the detainees were from Yemen but couldn't be transferred back after conflict
broke out there in 2011.
So, the US would have to convince other countries to take them.
That was Dan’s job.
For years and years, the American government has said these are the worst of the worst.
These are terrorist masterminds.
And now I'm saying, no, no, they're actually not.
We shouldn't have asked other countries to take them if we weren't willing to take them.
Dan negotiated transfers for 17 Uigher men
who were not allowed to be released to the US.
They'd been held in Guantánamo for more than a decade.
Over 8 years, the Obama administration moved 197 detainees out of Guantánamo
and convicted 5 through the military courts.
Four more died inside, three reportedly from suicide.
That left 41 detainees with a new president who wanted to keep the prison open.
"We're going to keep, as you know, Gitmo, we're keeping that open."
"And we're gonna load it up with bad dudes."
In 2017, Donald Trump took office as a fervent supporter of keeping Guantánamo open.
In four years, his administration only transferred one detainee.
In 2021, when President Biden took office
Moath al-Alwi had been in Guantánamo for 19 years.
According to his testimony, he went on a series of hunger strikes to protest his detention.
And described his life as an “endless horror movie”.
But January 11, 2022, Biden approved Alwi and four other detainees for transfer.
For Guantánamo to close, the Biden administration needs to transfer the last remaining detainees.
And the military courts need to conclude trials for the 10
who are currently stuck in the system.
Including the 5 alleged 9/11 plotters, who have now been on trial for a decade.
Once you start them outside the rule of law
bringing them in the rule of law is a lot trickier than you think.
Don't throw out the rulebook in a fit of passion.
You'll regret it.
And we did.