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Obama wanted to close Gitmo. Will Biden be able to finally do it?

President Biden’s Secretary of Defense, General LLoyd Austin has said he would follow through on President Obama’s efforts to close Guantanamo Bay, the prison for terrorism detainees. Today, its population is down to nearly 40, including six detainees cleared for release. Michel Paradis who has represented Gitmo detainees and has authored the book “ Last Mission To Tokyo” joins for more.

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  • Hari Sreenivasan:

    It's been 19 years since the United States opened a prison at the Guantanamo Bay Navy base for war on terrorism detainees, the population, once close to 800 prisoners, now stands at 40. Most were held without a trial. Six of those 40 detainees have been cleared for release, but the office to relocate them was closed four years ago. The Obama administration failed to close Guantanamo. President Joe Biden and Secretary of Defense General Lloyd Austin said he will follow through on closing it, but there are still hurdles in the way. Michel Paradis is a leading human rights lawyer who has represented Guantanamo detainees. He's also a scholar of national security law and author of the book "Last Mission to Tokyo."

    First, just to bring our audience up to speed, Gitmo has been up and running for so long now that there's an entire generation that has grown up with it their whole lives that they don't really realize what it is. So what is Guantanamo Bay?

  • Michel Paradis:

    Guantanamo Bay is a Navy base that's existed since the end of the 19th century, but in January of 2002, the Bush administration opened the prison for, quote unquote, "war on terrorism detainees" in Guantanamo on the premise that Guantanamo was essentially a legal no man's land.

    It was actually described at the time as the legal equivalent of outer space because they wanted to be able to hold these detainees in a place where no international law or no American law was believed to apply.

  • Hari Sreenivasan:

    So how many people were there in the beginning? How many are there now?

  • Michel Paradis:

    So the population ebbed and flowed through the early years of the Bush administration. Altogether, about 800 men have passed there in some way or another. Now, today, in 2021, that number is down to 40 or 40 men.

  • Hari Sreenivasan:

    And sometimes we have found situations where these men have been cleared or they have been sort of exported to third countries, not to the United States, not to their home countries.

  • Michel Paradis:

    Yes. So the population has largely been sent to foreign countries. In fact, six of the men in Guantanamo today have been cleared for release, some for as much as a decade. And there have been a variety of political, legal, diplomatic obstacles to simply making good on that release recommendation to send them to a foreign country where they can be held.

    Although one detainee, in fact, a number of Guantanamo detainees have actually been held for various periods in the United States, most people don't know that. There was one individual by the name of Yasser Hamdi, who was a Guantanamo detainee who turned out to have American citizenship. He was brought and held for a number of years in the Charleston brig.

    Another Guantanamo detainee by the name of Ahmed Ghailani was brought to New York in 2009, prosecuted for his role in the bombing of the African embassies in 1998, and is now serving a life sentence in a supermax prison in Colorado. And I bet most of your viewers have never heard of him. So it's not entirely true that no detainees have ever come to the United States.

    But the vast majority, as you said, have been sent to third countries, typically their country of origin or a closely related country.

  • Hari Sreenivasan:

    So if the six that are there now could go, why haven't they been sent away already?

  • Michel Paradis:

    Well, the Trump administration closed what was called the Guantanamo transfer office, the Guantanamo closure office, which was an office in the Department of State that was responsible for finding places for the detainees to go. So that was closed four years ago. There were actually an effort by a number of the detainees to try and get it out of the door in January of 2017 before it was deemed too late.

    So I think one of the major things divide the administration has to do in order to essentially make good on President Barack Obama's promise to close Guantanamo and to sort of resolve that unfinished business is to reopen the Guantanamo closure office who will spearhead the efforts to find a place for those six individuals who are currently cleared to go, as well as other individuals who are likely to be cleared in the years to come.

  • Hari Sreenivasan:

    What's the hard cost of keeping that prison open? And also, I guess there's also a pretty significant soft cost.

  • Michel Paradis:

    Absolutely. The hard cost, just in dollar terms for detaining the detainees is $13 million a year each. So this is the most expensive gated community in the Caribbean you've ever heard of.

    But the soft costs are astronomical. They are costs to our diplomatic credibility around the world, there are costs to our ability to cooperate with allies in warfighting efforts. There are a lot of countries who actually now traditional allies in Europe, for example, who now have to think twice before interacting with the United States on a, on defense objectives because of the risk, for example, of individuals being sent to Guantanamo.

    I think there's also a cost here at home. I don't think you can see children in cages on the southern border if we hadn't in some way or another created the legal and social infrastructure of seeing men in cages in Guantanamo a few years before that.

    Guantanamo is a place that, from its very inception was designed to be a place where people were not people. And once you start creating a legal regime around the idea that there are people who have no rights at all, they are merely objects, it's very easy for that to spill over into all aspects of American society, whether or not it's the tactics used in policing, whether or not it's the treatment of immigrants at the border or near the border, the treatment of refugees. Very quickly, the law of Guantanamo has become infected in a way, has infected the law of the United States.

  • Hari Sreenivasan:

    Is the very existence of this facility and the people that are in it an opportunity for our enemies to recruit against us?

  • Michel Paradis:

    It's not just an opportunity, it's a primary recruiting tool. There is a long tradition going back to the 1950s of radical Muslim terrorists using the imprisoned, essentially political prisoners, as their primary recruiting tool. And Guantanamo has been the most spectacular example of that around the world.

    There's a reason, thinking back only a few years to when ISIS was doing horrible things on the news every night, there's a reason that ISIS put men in orange jumpsuits before burning them alive or beheading them because they were making it a moral equivalence to Guantanamo, a moral equivalence that I certainly would object to, and I'm sure you would. But a moral equivalence that can probably seem fairly appealing to a lot of people around the world, particularly people who might be ambivalent about whether or not the United States is still the, the shining city on the hill that they always believed it to be.

  • Hari Sreenivasan:

    So what is the solution then? I can hear people listening to this interview saying, OK, fine, we close Gitmo. How should we be bringing people to justice?

  • Michel Paradis:

    Sure. So the easiest, most tried and true way to bring people to justice, such as the five men charged for perpetrating the attacks of September 11th, are the federal courts.

    Eric Holder, when he became the attorney general back in 2009, put together a plan to prosecute all of the 9/11 conspirators in a federal court. And people at the time, I remember, balked at the idea that it could possibly cost $100 million to do that. We spend that every year in Guantanamo. So if it's if it's simply a matter of cost where we are acting irrationally in Guantanamo.

    So you could bring the people who need to be charged for serious crimes, including 9/11, solve those, resolve those cases, definitively resolve them, credibly resolve them publicly in New York City.

    You could do that very easily in federal courts. The federal courts have a sterling track record of not only convicting people in terrorism cases, but of giving them extremely stiff sentences very easily. Under the federal sentencing guidelines, anyone charged with the terrorism offense gets a minimum of 17 years. So it would, the federal courts are there and open. So for the people who need to be charged, you can try them in a federal court for the other detainees, the detainee population.

  • Hari Sreenivasan:

    Why is there any interest in this not being in the federal court system? Is this a turf war where the military feels like they should have the right to bring these people to justice?

  • Michel Paradis:

    Certainly during the Obama administration, there became this, I would call it, a faux machismo around the war on terrorism that you saw former President Trump often play up, "the Guantanamo. We're going to fill it with bad dudes." To seem tough on terrorism on TV, you would say you're in favor of Guantanamo when in reality it's the softest thing you can do to respond to the threat of terrorism. So I think that's a big part of it.

    Politics has played a tremendous part in making Guantanamo as dysfunctional as it is. I think there are also vested interests inside, not so much the Department of Defense, but a much lower level. As we're conducting this interview, yesterday, as something of a parting shot an outgoing Trump official charged three more men in the military commissions in Guantanamo.

    By all accounts and by all measures only to complicate Secretary Austin's ability to make good on his promise to the Congress that he was going to really make an initiative to close Guantanamo. There is a kind of political and legal vandalism that Guantanamo has attracted. And the, and that's just something that's made it an incredibly intractable problem for a number of years.

  • Hari Sreenivasan:

    So what happens to these three, I think it's Indonesian men that have been charged or they might go to trial now?

  • Michel Paradis:

    I wouldn't put my money on it, to be perfectly candid. These men have been in Guantanamo or at least in US custody since, I think, 2003. They have been theoretical targets for prosecution since 2010 without any action by either the the Obama or Trump administrations in that direction. It's only, again, this parting shot by an official sort of very deep down in the Department of Defense.

    But to give you a measure of how any trial might go, the 9/11 conspirators, the five 9/11 conspirators have been facing trial since 2008. There's no trial date set yet. They're not looking to actually have a trial in that case, probably for years and maybe never. The one, the only thing that has been true about the military commissions, which are these tribunals created in Guantanamo, has been that they are dysfunctional. They are constantly beset by errors and and issues that would never occur in the federal court. To give you just one example, in the 9/11 case, I think they've now had six judges in the past two years. And you can't blame all of that dysfunction on the COVID-19 pandemic.

    The only thing that has been unflagging, true about the military commissions is delay and one thing after another, whether it's the six judges now in the past two years in the 9/11 case, whether it's judges in some of the other cases who were actually applying for jobs secretly with the government and therefore required the Court of Appeals to throw out years of their proceedings on the grounds of essentially judicial corruption — one thing after another has made these, sort of, these trials into a 'Waiting for Godot' experience. They're the trials that everyone's waiting for but never come.

    And these three Indonesians, if, assuming the Biden administration doesn't take fairly rapid steps to to pull back that order to prosecute them, they're going to be in some form of rope-a-dope trial process for the next decade. And I think it's really just a startling feature of Guantanamo and the military commissions that we actually are having fairly realistic conversations about the 9/11 case not actually being resolved until the people who were not yet born on September 11th are approaching middle age.

    And I think that's, that's a tragedy. That's a deep tragedy for this country. It's a tragedy for the victims. I live in New York. It's a tragedy for all New Yorkers who still every time, you know, if you're of a certain age like I am, every time you see the Freedom Tower, you're reminded of the two towers that aren't there anymore. And it's a scar on our country that has yet to heal. And Guantanamo is the primary reason that scar continues to fester.

  • Hari Sreenivasan:

    Michel Paradis, as a senior attorney at the Department of Defense office of the Chief Defense Counsel, thanks so much for joining us.

  • Michel Paradis:

    Thank you so much for having me on.

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