Just last month, advocates of closing the U.S. military prison at Guantánamo Bay, Cuba, were celebrating: The Biden administration had cleared several inmates for release, and had even sent one back home to Morocco, raising hopes that President Biden was taking steps to finally shut down the controversial detention center.
But now that optimism is dimming.
The Taliban's takeover of Afghanistan has raised fears that if additional Guantánamo prisoners are released, they could end up joining the militant group or engaging in anti-American activities overseas.
Those worries were fueled by photos of a Taliban leader, later identified as a former Guantánamo detainee, celebrating the capture of Kabul at the Afghan presidential palace last weekend. Another Taliban leader who reportedly helped orchestrate its comeback is a past Guantánamo inmate who was swapped in exchange for Bowe Bergdahl, the captured U.S. Army soldier.
"There's a fair amount of rational apprehension about what's going to happen in Afghanistan now," said former White House lawyer Chris Camponovo, who used to work on Guantánamo detainee policy, "and if it's back to what it was pre-9/11...and I have seen some anecdotal evidence that bad guys are returning to Afghanistan, I don't think it's fear-mongering to say it's a possibility, and probably a pretty likely possibility, that people will return to the battlefield there."
In the face of that concern, it remains to be seen whether Biden will forge ahead with his stated goal of closing Guantánamo, where 39 men are still being held, some for almost two decades. Nearly 800 detainees have passed through the prison since it was opened in 2002 to hold people rounded up in the war on terror. Some were Taliban members arrested in Afghanistan.
The remaining inmates include five men charged in the September 11, 2001, terror attacks, who have yet to go on trial, but the majority are "forever prisoners" who have never been criminally charged and are being held indefinitely.
Several lawyers representing Guantánamo prisoners told NPR they expect the current situation in Afghanistan to complicate Biden's efforts to begin shuttering Gitmo by transferring some detainees to other countries. The Taliban's rise, they said, is likely to put pressure on Biden to be more cautious in his approach to Guantánamo and take a politically harder line.
"Whatever [closure] plans there might have been will probably be slowed down by the collapse of the previous administration in Afghanistan," said Guantánamo defense attorney James Connell. "I do think the [Biden] administration will back off for a while, and I don't think we'll see any [prisoner] transfers in the short term."
Numerous Guantánamo defense lawyers interviewed by NPR downplayed speculation that current inmates might take up arms against the U.S. if they were released, noting that many of them are aging, infirm, and suffering the aftereffects of having been tortured while in custody.
"Every guy I have represented just wants to get as far away from the United States' reach as they can," said attorney Alka Pradhan. "They want to go away, live quietly. They never want to be incarcerated again. So the idea that they'd leave Guantánamo after 20 years and want to be leaders of some sort of Taliban militia, or even want to go to Afghanistan to that kind of chaos — it's just psychologically not where any of them are."
Even if a released prisoner were to become affiliated with the militant group, "there are real questions about what leaving Guantánamo and joining the Taliban would actually mean," added Connell, noting that Taliban work could include government functions such as digging wells. "But do I expect any of that kind of nuance to get any political traction? No, I wouldn't, because 'Taliban' is too scary a word."
The prisoners' lawyers also point out that about a quarter of Guantánamo's remaining inmates have already been cleared for release because the U.S. has determined they are no longer a threat. In addition, whatever country they eventually go to must provide security assurances to the U.S.
However, Camponovo, the former White House lawyer, told NPR that some countries that have promised to keep an eye on released Guantánamo prisoners later lost track of them. As a result, he said, the Taliban's resurgence causes understandable anxiety about where Gitmo prisoners might end up if they're let go.
"If it means picking up a rifle and charging off onto the battlefield, then probably it's unlikely, because it's been so long [that] are many of these guys really going to be effective soldiers?" Camponovo said.
"If, on the other hand, you've got some folks there who were in leadership positions or organizers or financiers — the folks who might be able to step back into networks and rally the troops," he added, "then, yeah, they could potentially still be a risk, particularly now that the situation in Afghanistan has changed."
Since the prison at Guantanamo opened following the 9/11 attacks and U.S. invasion of Afghanistan, more than 700 prisoners have been released. It is unclear how many of them later become involved, or re-involved, in terrorism.
The U.S. Office of the Director of National Intelligence is required to issue a semi-annual report on how many former Guantánamo prisoners have re-engaged in terrorist activities, but its findings are disputed. The most recent report, made public in December 2020, found that 17% of the released prisoners re-engaged in terrorism. But the percentage varies from 5% to 21% depending on the time frame being analyzed.
Critics say those numbers contain errors, inconsistencies, and inflated statistics meant to turn public opinion against releasing prisoners. Guantánamo defense lawyer Michel Paradis said the report defines "reengagement in terrorism" so broadly that it includes giving interviews, writing books and making speeches critical of the U.S. and of Guantánamo.
"That's definitely not pro-American activity, but it certainly is far short of people who are picking up a rifle and fighting on the battlefields of Afghanistan," Paradis said. "That's not to say there haven't been genuine recidivists...But the numbers of people who are actually reengaging in terrorism in the way most people would ordinarily think that means is significantly smaller, I think, than the statistics that are often thrown around based on these reports."
Furthermore, noted Camponovo, even in the domestic criminal justice system, releasing prisoners comes with a risk of recidivism — and if President Biden's goal is to close Guantánamo, he must accept some risk.
The question is, does the current turmoil in Afghanistan create an unacceptable level of risk? Or, now that Biden has made the decision to withdraw U.S. troops from Afghanistan, will he push ahead with releasing more Guantánamo prisoners even if some people think that's a dangerous gamble?
"If he stands firm that what he did with moving out of Afghanistan was right, he should stand firm that closing Guantánamo is also the right thing," said Guantánamo defense attorney H. Candace Gorman.
Still, added Camponovo, the upheaval in Afghanistan "is going to make it harder to make the case that recidivism isn't something we should be concerned about."
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