Guantanamo’s prisoners have reached a pivotal moment. So has the 9/11 case. Here’s what to know
WASHINGTON (AP) — After 23 years, the fate of the last remaining Guantanamo detainees swept up worldwide after al-Qaida’s shattering Sept. 11, 2001, attacks is reaching a pivotal moment this month.
Court battles and dealmaking are deciding the future of many of those last men at the U.S. naval base in Cuba, including those charged in some of the gravest attacks of the 21st century.
President Joe Biden’s administration is pushing to resolve as many of the cases as possible, on its terms, before Donald Trump takes office Jan. 20.
Trump in his first term acted to keep Guantanamo open. His pick for defense secretary also has opposed closing it.
But in the most high-profile case, the current administration is waging a last-minute fight this week to block a plea deal for Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and two co-defendants that would spare them the risk of the death penalty. The Defense Department oversaw negotiation of the plea agreement but later repudiated it.
At its peak, Guantanamo held almost 800 Muslim men, who had been captured by the U.S. or its partners in the Middle East, Central Asia and elsewhere, and flown shackled and blindfolded or hooded to the special military-run prison at Guantanamo Bay as the George W. Bush administration conducted what it called its war on terror.
Many of the foreign detainees had been tortured in CIA custody. That has complicated legal resolution of their cases and clouded the reputation of the U.S. for many. Human Rights Watch says the vast majority of all Guantanamo detainees were held without charge or trial.
Efforts to winnow down the number of detainees have now brought the population to its lowest point, 15.
Here’s a look at the Guantanamo cases:
How the detainees ended up in military custody outside the US
The Bush administration’s January 2002 decision to hold foreigners taken into custody overseas indefinitely at Guantanamo came in response to an attack that tore through the U.S. and global order. Nineteen al-Qaida hijackers commandeered airliners and flew them nose-first into the World Trade Center towers, the Pentagon and a Pennsylvania field.
As the U.S. invaded Afghanistan and Iraq and launched military operations elsewhere in response, it looked offshore, to a swath of Cuba leased by the U.S. Navy for a century, to imprison and judge the hundreds it swept up, invoking World War II-era law on military commissions. Many prisoners were never shown to have any ties with extremist groups.
The decision strained U.S. law. Bush’s vice president, Dick Cheney, called the detainees at Guantanamo “the worst of the worst ” and defended creating the military commission. The other choices were to try the men in the United States, where they would have all the rights afforded them by the U.S. Constitution, or kill them, Cheney later explained.
A 2008 Supreme Court ruling dictated that U.S. handling of the Guantanamo detainees did in fact have to abide by the U.S. Constitution.
Why the detentions matter
The U.S. military response succeeded in greatly reducing the ability of al-Qaida and later the Islamic State group to stage mass attacks abroad.
But the military and security successes were shadowed by the human and financial tolls of those wars, by the torture of the detainees in their first years in U.S. custody, and their long imprisonment without charge.
Legal experts often call the early torture that detainees underwent the “original sin” of the Guantanamo prosecutions, clouding prospects of any trials.
Rights groups have calculated Guantanamo’s annual costs at upward of $540 million, That breaks down to $36 million per detainee at the current population of 15.
Negotiations with the Taliban
The Biden administration also is trying to bring home three Americans believed held in Afghanistan since 2022 and is in negotiations with the Taliban — who returned to power in Afghanistan in 2021, two decades after being ousted by a U.S.-led coalition in retaliation for sheltering the al-Qaida leader, Osama bin Laden.
The three Americans are Ryan Corbett, who was abducted while on a business trip; George Glezmann, an airline mechanic seized by the Taliban’s intelligence services; and Mahmood Shah Habibi, an Afghan American businessman who worked as a contractor for a Kabul-based telecommunications company.
On the other end of the possible deal, according to two people who spoke on the condition of anonymity to discuss secret talks, is an Afghan national held for years at Guantanamo Bay and a central figure in the Senate Intelligence Committee’s report about the CIA’s use of torture techniques on suspected terrorists.
It was not immediately clear whether an exchange could be completed during the waning days of the administration, and one of the two people said the Taliban is believed to seek the release of additional people in U.S. custody as part of any deal.
What Biden has done to transfer Guantanamo detainees
Biden has cut the population of Guantanamo down from 40 since taking office. Much of that has been in an extraordinary push in his last weeks in office. That includes 11 men from Yemen held more than two decades without charge, whose transfers were announced this week after Oman agreed to take them.
The U.S. has struggled to find other countries that both are willing to take Guantanamo detainees and offer enough certainty that the men will not be abused by their host country or vulnerable to recruiting by extremists.
In federal court this week a physically disabled Iraqi prisoner is battling what his lawyers say are imminent U.S. plans to ship him to an Iraqi government prison. In a 2022 plea deal, Nashwan al-Tamir pleaded guilty to war crimes charges related to al-Qaida in Afghanistan. He says the U.S. would violate that deal by sending him to Iraq, where he says he would face abuse and poor medical care.
Six of the 15 remaining detainees were never charged, and rights groups are pushing Biden to release all of them before he leaves office.
The fate of the defendants charged in the gravest attacks
Seven of the remaining detainees have been charged, including Mohammed and four others in the 9/11 attacks that killed nearly 3,000 people. One was charged in a 2002 bombing in Bali that killed more than 200 people, and another in the 2000 bombing of the USS Cole off Yemen.
With the prosecution in the Sept. 11 attack dragging on for decades and no conclusion in sight, military prosecutors this summer notified families of the victims that the senior Pentagon official overseeing Guantanamo had approved a plea deal after more than two years of negotiations.
The deal was “the best path to finality and justice,” military prosecutors told families then.
Mohammed and co-defendants Walid bin Attash and Mustafa al-Hawsawi agreed to plead guilty to 2,976 murder charges in exchange for life sentences. Other conditions included that the men would answer family members’ lingering questions about the attack. A clause in Mohammed’s plea deal bars prosecutors from seeking the death penalty again if the plea deal is scrapped, as long as Mohammed was abiding by its terms.
Defense Secretary Lloyd Austin has fought unsuccessfully since Aug. 2 to throw out the plea agreement negotiated and approved by his department. He argues that a decision on death penalties in an attack as grave as Sept. 11 should only be made by the defense secretary.
The Biden administration asked a federal appeals court on Tuesday to block the plea deal. Absent a stay from that court or some other intervention, Mohammed is due to enter his guilty plea Friday. Family members of Sept. 11 victims are already at Guantanamo to watch.
His co-defendants would follow with plea deals later.
Uncertainty over Trump and other Republicans
It’s not clear how Trump would handle Guantanamo in his second term. Filings in the Sept. 11 plea deal made clear that defense lawyers had an eye to wrapping up the plea deal before the inauguration and even Trump-proofing it.
Trump in his first term signed an executive order to keep Guantanamo open, reversing an executive order by President Barack Obama to close it that Obama himself had never managed to fulfill.
Trump’s pick for defense secretary, Pete Hegseth, has called in the past for keeping Guantanamo open. He’s argued that the length of the military commission proceedings make the U.S. look “unserious” and send extremists the message they can “lawyer up and be just fine.”
Outraged by the Sept. 11 plea deals, Republican lawmakers have vowed to introduce legislation in the now Republican-controlled Congress that would mandate death-penalty trials at Guantanamo for Mohammed and the other two men. The bill also would require the three be held in solitary confinement with no possibility of transfer to another country.
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Ellen Knickmeyer has reported on Guantanamo and the post-9/11 detainees since January 2002, when she covered the first transfer fights of so-called American Taliban John Walker Lindh and other prisoners from the tarmac of a U.S.-held airport in Kandahar, Afghanistan.
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Eric Tucker contributed.