The U.S. military transferred an Algerian detainee from Guantanamo Bay to Algeria on Thursday, according to the Defense Department, bringing the population of the detention facility at the base in Cuba down to 30.
The Biden administration is discussing options, including a possible executive order, to further reduce the number of detainees in the coming months and ultimately close the detention facility by the end of President Joe Biden’s current term, according to one current and one former administration official.
Said bin Brahim bin Umran Bakush, also known as Abdul Razak Ali, was captured in Pakistan in March 2002 while living in a guest house affiliated with Al Qaeda operative Abu Zubaydah and several other men affiliated with the terrorist group. He claims he was the victim of mistaken identity and that he was not part of Zubaydah’s group.
The U.S. government deemed him clear for transfer from the facility last April through the Periodic Review Board process, which determines whether continued detention is necessary for security reasons.
Before the United States can transfer anyone out of Guantanamo, it must have an agreement with another country to accept the detainee, since a law passed by Congress in 2015 bans the transfer of any detainees to the U.S. The biggest challenge for reducing the population is finding places for the detainees to go. The Biden administration has recently transferred detainees to Saudi Arabia, Pakistan and Belize, with a significant number of additional ones expected in the coming months.
Soon after taking office, Biden began a quiet effort to close the facility with hopes of transferring detainees to other nations and shrink the population as small as possible and then convince Congress to allow the transfer of the last few to detention in the U.S. Since that effort began nearly two years ago, 10 detainees have been transferred to other nations.
Biden would not take executive action to circumvent the 2015 law banning transfers to the U.S., two administration officials said, and the White House doesn’t plan to push Congress to overturn it after assessing there’s little political will for such a move. The officials said administration officials are instead weighing other options to deal with those Guantanamo detainees who are deemed too dangerous to be transferred and released in a foreign country, like transferring them to a foreign country for additional incarceration.
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Of the 30 remaining detainees, 16 are already eligible for transfer and three are eligible to be considered for review. Nine are being tried via the military commission process and two have been convicted via the commission process. Under the existing protocol, any detainee convicted by the commission process would be sentenced to further confinement at Guantanamo.
One possible option for closing Guantanamo despite the ban on transferring detainees to the U.S., said the one current and one former official, could be to obtain plea deals from those detainees deemed ineligible for transfer during the military commission process and having them serve their prison sentences in their home countries or a third-party country that was also affected by their alleged crime.
The Obama administration, for instance, discussed with the Malaysian government transferring a Guantanamo detainee of Malaysian descent to a prison there as part of a plea deal. The administration also explored sending another Guantanamo detainee to a prison in Israel because the detainee’s crime impacted Israeli citizens. And, similarly, the Obama administration discussed with the United Arab Emirates jointly prosecuting Emirati detainees at Guantanamo who plotted the USS Cole attack because the detainees had also violated UAE law. Those efforts never bore fruit, two former administration officials familiar with the discussions said.
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Biden plans to reverse an executive order by then-President Donald Trump that preserved the option of bringing additional prisoners to Guantanamo, the current official and the former administration official said. Biden also is likely to amend or supplant an executive order signed by then-President Barack Obama that outlines the administration’s processes for handling detainee cases. A new executive order would likely streamline and speed up the process, the officials said.
A spokesperson for the National Security Council declined to comment.
Then-President George W. Bush opened the detention facility in 2002. At its height, it held nearly 800 detainees. As candidates for president and vice president, Obama and Biden pledged to shutter the prison and two days after being inaugurated, Obama signed an executive order to close it by the end of the year. While the Obama-Biden administration reduced the population from 245 to 41, congressional resistance made closing the facility difficult. After Trump became president, he signed an executive order to keep the facility open and only transferred one detainee to another country during his time in the White House.