Just after 9/11 and the invasion of Afghanistan, the military prison at Guantanamo Bay was at its peak capacity, with 675 men (or more than 800, depending upon the source) held prisoner there. Today, 39 prisoners remain, only eleven of whom have actually been charged with war crimes.

Under the administrations of Presidents G. W. Bush - who established the detention camp at Guantanamo Bay in 2002 - and Barack Obama’s administrations, efforts were made to transfer prisoners to other countries that would make sure the men were securely handled. Nearly 200 prisoners were transferred under Obama’s White House. The ultimate goal was to close Guantanamo Bay, which is said to expend more than $13 million per prisoner per year. In order to close the facility, the prisoners must be transferred to appropriate locations.

During the Trump administration, the transfer process stopped. Only one prisoner was released during the Trump administration, and that one was a confessed Qaeda terrorist. He was repatriated to Saudi Arabia in accordance with a plea agreement and will serve out a prison sentence imposed by a U.S. military commission.

On Monday, July 19, 2021, the Biden administration restarted the transfers with the repatriation of Abdul Latif Nasser, a Moroccan man, who was recommended for discharge in 2016 but remained a prisoner during Trump’s administration. Nasser was never charged with a crime. A Defense Department release said that the 2016 Periodic Review Board determined Nasser’s detention “no longer remained necessary to protect against a continuing significant threat to the national security of the United States.”

Congress was notified on June 17 that Nasser would be moved. An administration official said, “The transfer . . . was certified by the Secretary of Defense in accordance with the requirements as outlined in the National Defense Authorization Act for fiscal year 2016 and Congress was notified appropriately.”

Nasser was transferred to Morocco after security assurances from the government were received. Nasser was allegedly a former Taliban fighter in 2001. Five years ago, he told an interagency panel that he “deeply regrets his actions of the past.” His release was approved by that panel on July 11, 2016, and was only valid if he was returned to Morocco.

“This transfer cannot make up for the two decades of his life that Abdul Latif has lost, held prisoner without charge, but we welcome his return to Moroccan soil at long last. Other transfers of prisoners cleared for release must follow without delay,” said Reprieve Deputy Director Katie Taylor (Reprieve is a legal action non-governmental organization).

Nasser’s lawyers issued a statement that said, “It is hardly cause to celebrate the release of a man held for nineteen years without ever being charged with a crime, the last four of which were the collateral damage of the Trump Administration’s and zealous Republican War on Terror hawks’ raw politics. If this were a wrongful conviction case in Cook County, it would be worth $20 million. Nevertheless, we applaud the Biden Administration for causing no further harm.”

Photo Source: Abdullatif Nasser at the Guantanamo Bay detention center in Guantanamo Bay, Cuba. (Shelby Sullivan-Bennis via AP) On Sunday, while the transfer was being implemented, a senior administration official said, “The United States is grateful to the Kingdom of Morocco for its willingness to support ongoing U.S. efforts to close the Guantanamo Bay detention facility.” He went on to say that the White House is “dedicated to a deliberate and thorough process of responsibly reducing the detainee population and ultimately closing the Guantanamo Bay detention facility.”

Of the 28 remaining prisoners who have not been charged with a crime, ten have been recommended for transfer by a federal panel. Their transfers would come with the same required security arrangements as Nasser’s. Seventeen more prisoners are eligible for periodic review boards.

White House press secretary Jen Psaki spoke in February of President Biden’s intention to shut the prison and said that full closure by the end of Biden’s term in 2024 was the goal.

Biden’s White House is taking a non-ostentatious approach to the goal of closing the prison, in contrast to the Obama administration that made closing Guantanamo a signature policy. Obama ordered the prison to be closed during his first year in office. He failed, largely because of intense Congressional opposition. Biden’s administration is trying to avoid that same result by working quietly to reduce the prison population.

Part of the administration’s low-key approach is that career employees in the State Department’s Bureau of Counterterrorism and regional diplomats handled talks with the Moroccan government, rather than reviving Obama’s “special envoy” position. That envoy was to travel the world and negotiate deals for other countries to take in prisoners.

Of the Biden administration’s intended method, Secretary of State Antony J. Blinken said, “We are trying to find a way to act on each individual case. In certain cases you need to find a country that is ready to welcome the person in question.” He said that once a country is selected, “we must have a guarantee that the rights of these people will be protected in that country. That’s not easy, either.”

Ned Price, State Department spokesman, said Monday, “Morocco’s leadership in facilitating Nasser’s repatriation, alongside its past willingness to return its foreign terrorist fighters from northeast Syria, should encourage other nations to repatriate their citizens who have traveled to fight for terrorist organizations abroad.”

The Biden White House has re-opened a parole-type procedure the Obama administration used to consider each Guantanamo detainee who was not charged with crimes. The decision must be made about whether to turn him over to another country’s custody. Since Biden took office, the interagency Periodic Review Board has announced five decisions, and all those detainees were approved for transfers. One of those men is the oldest prisoner, a 73-year old Pakistani.

The panel comprises representatives from the Office of the Director of National Intelligence, the Department of Homeland Security, the Pentagon’s Joint Staff, and three other national security agencies. Their recommendation for transfer does not guarantee a release. It still remains for the State Department to broker transfer deals, and the defense secretary is required to approve the release and the details and notify Congress.

Some Congressional Democrats are impatient with the slow movement to close the prison. They have proposed legislation in the Appropriations Committee that would defund Guantanamo Bay.

Should that legislation pass, places must be found for the remaining 39 detainees. Some would have to come to the U.S., likely to military detention. This is particularly true in the case of Khalid Sheikh Mohammed, who has been accused of being the mastermind of the September 11 attacks and has yet to go on trial.

Current federal law from early 2011 prohibits transfers to the U.S. The Biden administration’s 2022 budget proposal would restore presidential authority to move prisoners from Guantanamo to a mainland prison, but that would be up to Congress.

Opposition to Mohammed’s and other prisoners’ transfer to the U.S. comes mainly from Republicans plus some Democrats. They suggest that having them on the mainland or giving them a trial on U.S. land would be dangerous to national security. Their counterparts say the federal government already keeps many convicted terrorists safely on U.S. soil and that bringing Guantanamo detainees to the mainland would be no different.

Eight Republican senators wrote the president stating their opposition to closing the detention center through transfers. They wrote, “The remaining 40 detainees are all high risk.”

The ball is in motion, though, with Mr. Nasser’s repatriation. Last week, the House Appropriations Committee approved a bill requiring the Defense Department to submit a report on the facility. That report is to include plans to close down Guantanamo Bay.

Speaking of the ten detainees who’ve been recommended for transfer, Press Secretary Psaki told reporters on Monday, “I don’t have a timeline for you. As you know, there’s a process. They’re in different layers of the process. But that remains our goal. And we are considering all available avenues to responsibly transfer detainees and, of course, close Guantanamo Bay.”

Lee Wolosky, the official in the Obama administration who oversaw prison transfers from Guantanamo, said, “We’re really in a different world than we were in 2001 when the 9/11 attacks happened and 2002 when Guantanamo was opened. The base in Afghanistan for al-Qaida no longer exists and the threat environment is just fundamentally changed, so it’s really time to wrap up this chapter of our history and to move on.”