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Biden quietly moves to start closing Guantánamo ahead of 20th anniversary of 9/11

The Biden team wants to avoid what it sees as mistakes made by Obama. "They don't want it to become a lightning rod," said a former senior official.
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WASHINGTON — President Joe Biden has quietly begun efforts to close the U.S. detention facility at Guantánamo Bay, Cuba, using an under-the-radar approach to minimize political blowback and to try to make at least some progress in resolving a long-standing legal and human rights morass before the 20th anniversary of the terrorist attacks of Sept. 11, 2001.

After initial plans for a more aggressive push to close the facility — including rebuffed attempts to recruit a special envoy to oversee the strategy — the White House changed course, sources said. The administration has opted to wait before it reaches out to Congress, which has thwarted previous efforts to close the camp, because of fears that political outcry might interfere with the rest of Biden's agenda.

"They don't want it to become a dominant issue that blows up," a former senior administration official involved in the discussions said of Biden officials. "They don't want it to become a lightning rod. They want it to be methodical, orderly."

The administration hopes to transfer a handful of the remaining terrorism suspects to foreign countries, the people familiar with the discussions said, and then persuade Congress to permit the transfer of the rest — including 9/11 suspects — to detention on the U.S. mainland. Biden hopes to close the facility by the end of his first term, the people familiar with the discussions said.

But even though just 40 people are left at Gitmo, the Biden administration faces many of the same obstacles that doomed President Barack Obama's much more public effort to close it a dozen years ago.

President George W. Bush opened the detention facility in 2002. At its peak, it held nearly 800 detainees, including 9/11 suspects and combatants from the battlefield in Afghanistan. By the time Obama took office in 2009, fewer than 300 detainees were in the camp.

During his campaign for president, Obama had pledged to shutter the prison within a year of taking office. Two days after he was inaugurated, he issued an executive order to close Gitmo by the end of the year, and he restated the goal in media interviews.

Congress, however, resisted the transfer of detainees to the U.S. The House and the Senate rejected funding for the move and also blocked the transfers, with many Democrats voting against the Obama administration's plans.

By the end of his second term, Obama had reduced Guantánamo's population from 245 to 41 detainees, transferring many to foreign countries, but the prison remained in use.

President Donald Trump signed an executive order keeping it open. One detainee was transferred to a foreign country during his tenure.

Image: The U.S. military prison for "enemy combatants" in Guantanamo Bay, Cuba
A detainee stands at an interior fence inside the U.S. military prison for "enemy combatants" at Guantánamo Bay, Cuba, in October 2009.John Moore / Getty Images file

When Biden took office, six of the 40 detainees still at the U.S. enclave on the southeast coast of Cuba were already eligible for transfer to foreign countries. Last month, three more detainees were designated as eligible for transfer — two Yemenis and a Pakistani.

The decision to approve the transfers of the three men was made during a review process hosted by Biden's National Security Council. The process included members of the Defense Department's Periodic Review Secretariat, a Defense Department official said.

The U.S. has to negotiate a transfer agreement with a foreign government for each detainee eligible for transfer, which can be difficult for detainees from destabilized countries like Yemen.

Nineteen other detainees may be candidates for transfer to foreign countries. They are eligible for the Periodic Review Boards, a Defense Department official said, but they have never been charged. The Periodic Review Board reviews a detainee's file to determine whether the detainee still presents a threat to the U.S.

That leaves a core group of at least a dozen detainees who cannot be transferred, including 9/11 defendants. Ten detainees are in the military commissions, military courts often used to try foreign citizens affiliated with terrorist networks who fought against the U.S. Two other detainees have already been convicted by military commissions.

The administration is likely to try to work out plea deals for the men in the military commissions process, under which they would continue to be detained but could be spared the death penalty.

Twentieth anniversary

While officials said the administration's policy review of Guantánamo continues, some initial decisions have been made. Overall, Biden is leaning toward an approach that would give the issue a far lower profile than it had during the Obama administration.

The White House will first reduce the number of detainees, said the people familiar with the discussions, and it will put off, at least for now, opening a State Department office and naming an envoy to focus on closing the facility.

Officials have also decided not to stand up a parallel office and envoy at the Pentagon for closing the facility, another departure from Obama administration policy.

Biden will ultimately appoint a State Department envoy, sign a new executive order directing that the facility be closed and try to work with Congress to lift a ban on relocating the remaining prisoners to U.S. prisons or military bases, people familiar with the discussions said.

IMAGE: The U.S. prison at Guantanamo Bay, Cuba
A U.S. naval officer stands at the entrance of the U.S. prison at Guantánamo Bay, Cuba, in October 2016.John Moore / Getty Images file

The low-key strategy is a response to miscalculations that Biden administration officials believe Obama made.

"President Biden is objective-driven and focused on quiet and intense solutions," an administration official said.

Biden's goal of closing Guantánamo before the end of his first term is more modest than Obama's target of shuttering it within his first year in office.

The administration is leaning against including the option of transferring detainees to U.S. military installations, another shift from the Obama administration's approach.

The Biden administration may, instead, propose that any detainees who are not eligible for transfer to foreign countries be moved to so-called Supermax security prisons on the U.S. mainland, notably the one in Florence, Colorado.

A spokesperson for the NSC told NBC News in a statement that the administration "is conducting a thorough and deliberate review focused on closing the facility."

"As to the overall issue of Guantanamo, the Biden administration remains committed to the goal of closing the facility," the statement said. "To that end, the NSC continues to work closely with the Departments of Defense, State, and Justice and other departments and agencies."

But Biden must still persuade Congress to permit the transfer of detainees to the mainland, which Obama could not do.

Image: Detainees at Guantanamo Bay
Guards stand on either side of a lineup of detainees, in white, to search for unauthorized items at Guantánamo's Camp 4 detention facility in May 2009.Brennan Linsley / AP file

The Biden administration, like the Obama administration, plans to use the cost of maintaining Guantánamo, including special care required as detainees age, to try to persuade Congress to reverse the ban on domestic transfers.

While there is still opposition in Congress to closing Guantánamo, some lawmakers and advocacy groups have called on the Biden administration to do more to shutter the facility, including appointing someone as a point person or administration czar who can could negotiate transfer agreements and be in charge of closing the facility.

A group of Democratic senators urged Biden to re-establish the position of special envoy for Guantánamo closure at the State Department and to rebuild "the appropriate closure infrastructure at the Defense Department."

Amnesty International USA has called on Biden to "immediately to appoint a high-level official in his administration to take charge of closing Guantánamo and arranging the transfers of all detainees who are not charged with crimes, a critical first step to ending the indefinite detention of the detainees there."

At a minimum, people familiar with administration discussions said, the Biden White House hopes to show some progress on closing Guantánamo by the 20th anniversary of 9/11. Biden has ordered the withdrawal of all U.S. combat troops from Afghanistan by Sept. 11, and officials are cognizant of the optics of ending the war while one of its most infamous relics remains.

"People are starting to focus on it more," a person familiar with the discussions said.