Gitmo 20 Years Later: A 'Legal Black Hole' with Biden Shutdown Push Blocked by Congress

Newly appointed Brig. Gen. Michael Lehnert built the first detention facility in the war on terror at Naval Station Guantanamo Bay, Cuba, 20 years ago and has regretted it ever since.

On Jan. 4, 2002, Lehnert, now a retired major general, received orders to take 1,000 Marines from Camp Lejeune, North Carolina, and deploy to "Gitmo" within 96 hours to construct holding pens for the arrival of al-Qaida and Taliban prisoners captured by U.S. troops in Afghanistan.

The detention facility that came to be known as Camp X-Ray was to be the solution to the dilemma faced by then-President George W. Bush's administration: What to do with those captured by U.S. forces in Afghanistan and, later, Iraq?

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The administration was against treating the captives as prisoners of war, entitled to humane treatment under the Geneva Conventions, and so designated them "unlawful enemy combatants." It also ruled out bringing them to the U.S., where they would receive due process from the courts and be protected from "enhanced interrogation techniques."

"The Bush administration settled on Guantanamo," Lehnert testified to Congress last month, and the detention facilities, which cost the U.S. about $540 million annually, have been an unresolved legacy of the 9/11 attacks since the first 20 hooded prisoners arrived there on Jan. 11, 2002.

"The speed of Guantanamo's creation and the urgency to gain information had bad consequences," Lehnert said. "The legal ambiguities that make Guantanamo an attractive choice for some policymakers sets up extra challenges for the soldiers, sailors, airmen and Marines who must execute those policies."

In addition, "the subsequent decision to subject detainees to enhanced interrogation techniques and to avoid application of the Geneva Conventions except when it suited us cost us international support and aided our enemies," Lehnert said.

Then-Defense Secretary Donald Rumsfeld in early 2002 called those sent to Guantanamo the "worst of the worst" who had to be kept from returning to the battlefield or plotting more attacks on America. The risk of releasing them for lack of evidence was too great, he said.

Rumsfeld eased up somewhat on his stance at a Pentagon briefing in June 2005. "The United States government, let alone the U.S. military, does not want to be in the position of holding suspected terrorists any longer than is absolutely necessary. But as long as there remains a need to keep terrorists from striking again, a facility will continue to be needed," he said.

Lehnert spoke at a Dec. 7 hearing of the Senate Judiciary Committee titled "Closing Guantanamo -- Ending 20 Years of Injustice" that went mostly unnoticed on the 80th anniversary of the Pearl Harbor attacks. He was among panelists who argued both for and against shutting down the detention facility.

At the hearing, Lehnert echoed the concerns of the families of 9/11 victims, who have yet to see the alleged planners of the terror attacks brought to trial.

Those held without charge since the Guantanamo detention facility was set up deserve justice by either being charged and brought to trial or released, Lehnert said, but "more importantly, the relatives of the victims of 9/11 and of other terrorist attacks deserve justice and they deserve closure and they aren't getting it."

In her testimony at the hearing, Colleen Kelly, a nurse from the Bronx whose 30-year-old brother, Bill, was killed in the north tower of the World Trade Center on 9/11, said, "For the families, there's been no justice or accountability as yet.

"After 9/11, we expected our government to uphold the rule of law in seeking accountability for our relatives' deaths, yet that has failed to happen," she added.

Currently, five co-defendants, including Khalid Sheikh Muhammed, considered the architect of the 9/11 attacks, are awaiting trial before a military commission at Guantanamo that has been in the pre-trial stages for nine years.

Several Republicans at the hearing argued that the withdrawal of U.S. troops from Afghanistan in August and the Taliban takeover made it impossible to consider releasing the remaining prisoners at Guantanamo.

"Twenty years after 9/11, the Taliban is back in charge," said Sen. Lindsey Graham, R-S.C., adding that at least five of the individuals now in the Taliban government are former Guantanamo detainees.

Graham charged that 229 of more than 700 detainees released from Guantanamo thus far and sent to countries willing to accept them "have gone back to the fight. And we're talking about releasing people. This is nuts."

Sen. Charles Grassley, R-Iowa, said that "releasing terrorists who will only attack us again does not protect the American people."

During the Bush administration, the detainee population at Guantanamo swelled to about 780, but more than 500 were transferred to the custody of other nations or released before Bush finished his second term.

About 242 detainees were being held when President Barack Obama came to office with a pledge to shut down Guantanamo within a year, mainly by sending detainees to the U.S. for trial. But Congress blocked the plan by refusing to fund the transfers to the U.S.

However, Obama continued the policy of transfers to other countries, and only 41 detainees remained by the time he left office, according to the Defense Department.

At a campaign rally in February 2016, then-presidential candidate Donald Trump said he would keep Guantanamo open if elected, adding, "We're gonna' load it up with some bad dudes."

Once in office, Trump directed then-Defense Secretary Jim Mattis to keep Guantanamo open, but the population remained stable.

In May 2018, the first Guantanamo inmate to be released under the Trump administration was sent to Saudi Arabia to finish out the remaining nine years of a sentence handed down by a military commission during the Obama administration. He had pleaded guilty to plotting to blow up ships in the Strait of Hormuz.

President Joe Biden came to office with 40 inmates at Guantanamo; in July 2021, the first inmate to be released during his administration was repatriated to Morocco, bringing the population down to 39. That inmate, 56-year-old Abdul Latif Nasser, was never charged with a crime.

Biden also has pledged to shut down Guantanamo, but Congress has continued to block any chance of sending the detainees to the U.S. to resolve their cases.

In recent years, Congress has put the restrictions into the annual defense policy bill, or National Defense Authorization Act, on a bipartisan basis and did so again in the fiscal 2022 NDAA, which Biden signed Dec. 27.

The restrictions include "a ban on the transfer of Guantanamo detainees to the United States," as well as a ban on the use of Defense Department funds to build facilities in the U.S. to house those detainees.

On Tuesday, the 20th anniversary of the first detainees' arrival at Guantanamo, Sen. Dick Durbin, D-Ill., went to the Senate floor to argue again for closing the facility, which he called a "legal black hole" for those sent there.

"Every day Guantanamo remains open is a victory for our nation's enemies," who have used the existence of Guantanamo as a recruiting tool, Durbin said. "It is a symbol of our failure to hold terrorists accountable and our failure to honor the sacrifices of our service members. These failures should not be passed on to another generation; they should end with the Biden administration."

At a Pentagon briefing Monday, Pentagon spokesman John Kirby said, "The administration remains dedicated to closing the detention facility at Guantanamo Bay. There's nothing -- nothing's changed about that. We are in a review right now about the way forward there, so I won't get ahead of that."

He said that the 39 inmates remaining at Guantanamo "are the hardest cases to deal with and to adjudicate. And so, we're working our way through that right now."

– Richard Sisk can be reached at Richard.Sisk@Military.com.

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