It’s Time for a Reckoning on Torture

The 20th anniversary of 9/11 will soon be followed by the 20th anniversary of one of the most brutal responses to it: the January 2002 opening of the Guantánamo Bay military prison to hold detainees captured in America’s counterterrorism campaigns. The Biden administration is making efforts to finally close the facility, where detainees have been tortured and held indefinitely under the CIA’s detention and interrogation program.

But the horrors of Guantánamo will not disappear by simply shutting down the facility. There must be a proper reckoning with the legacy of torture at Guantánamo Bay, one of several sites the United States used to torture detainees in secret.

Without this reckoning, the Biden administration’s statements in support of human rights will continue to ring hollow. Worse, it will continue to send a message of tacit endorsement to authoritarian governments around the world that systematically torture their own citizens—often in the name of counterterrorism.

As then-Sen. Joe Biden said in 2007, “We need to send a clear message that torture, inhumane and degrading treatment of detainees, is unacceptable, is not permitted by U.S. law, period.” As vice president in 2013, Biden expanded on these views, stating, “I think the only way you excise the demons is you acknowledge exactly what happened straightforwardly.”

If President Biden is truly committed to excising those demons, there are several steps he must take as president, including expanding the legal safeguards against torture, declassifying information on interrogations, issuing a public apology, authorizing compensation for torture victims and their families, and pursuing criminal accountability for those who ordered and carried out the torture and other cruel, inhumane, and degrading treatment of detainees.

Of the approximately 780 detainees who have been held at the Guantánamo Bay prison since it opened nearly 20 years ago, 39 remain. Through the military commissions system, 12 have been charged with war crimes, 10 are awaiting trial, and 17 continue to be held in indefinite detention without any charges brought against them. In addition, 10 of the remaining 39 detainees have been recommended for release, some of whom have been waiting for almost two decades, again without facing any charges.

Meanwhile, the 42nd pretrial hearing is underway at a Guantánamo Bay military tribunal for five detainees accused of aiding the 19 hijackers of the passenger planes on 9/11. These men were detained between 2002 and 2003 and held at CIA black sites until they were transferred to Guantánamo in 2006.

Biden has prioritized the transfer of the remaining detainees who have not been charged with any crimes. His administration has also established an interagency review with the aim of shutting down the Guantánamo Bay facility by the end of his presidential term—a goal that began with the Obama administration and was mired in congressional and interagency politics.

The sticking point was the issue of detainee transfers: Nobody wanted to allow the detainees to relocate to prisons in the United States, and nobody was willing to take responsibility for authorizing the transfer of detainees to another country for fear of recidivism.

Despite former President Barack Obama’s executive order to shut down Guantánamo Bay within a year of his taking office, subsequent attempts to complete the transfer of detainees were blocked, mainly by the Department of Defense. Obama then failed to veto a bill that prevents the transfer of detainees to U.S. soil, cementing the impossibility of shutting down Guantánamo by severely limiting the prospects for the release of the remaining detainees held without charges.

One lesson that Biden can draw from the Obama administration’s failure to shut down Guantánamo is that less deference to Congress and more executive decision-making are needed. Though Obama’s executive order to close Guantánamo was not implemented, his diplomatic engagement with third countries resulted in the transfer of at least nine Yemeni detainees to Saudi Arabia.

Biden’s diplomatic involvement, in addition to the appointment of a special White House envoy whose role would focus on negotiating transfers, especially of those detainees who were already approved for release years ago, would be crucial.

But transferring the remaining detainees and closing Guantánamo Bay will not make the problems it generated disappear.

To address the legacy of the detention and interrogation program, the Biden administration should implement the recommendations outlined by senators in 2012 and again in 2021 to prevent the future use of torture for intelligence gathering. These recommendations include putting in place legal safeguards against the future use of torture.

For instance, the list of prohibited interrogation techniques in the Army Field Manual should expand to include all of what the CIA terms “enhanced interrogation techniques” to avoid disingenuous interpretations of legal loopholes that essentially allow for the use of torture—and no accountability.

Also important is declassifying intelligence information that, at the very least, clarifies which confessions were induced through torture so that current and future Guantánamo-related trials are based on credible evidence.

In a recent declassification of intelligence following a New York court order, it emerged that FBI agents gathered crucial intelligence related to a planned al Qaeda attack in Israel without having to torture the man who provided the information. As Bruce Riedel, director of the Brookings Intelligence Project, points out, the plot was kept a secret for years to hide from the public the fact that intelligence officers did not need to resort to the use of torture to obtain accurate information. The long-delayed declassification of this piece of information, Riedel writes, “was about protecting the use of torture.”

Another important, symbolic step would be for Biden and the heads of the intelligence agencies to issue a public apology for the abuses inflicted upon the Guantánamo Bay detainees. Such an apology should acknowledge that the U.S. government and its agencies did wrong by both allowing and failing to prevent the physical and psychological torture of detainees and holding them in indefinite and arbitrary detention, all of which are violations of both U.S. and international law.

A public apology would make clear that Guantánamo Bay runs contrary to the professed human rights values of the U.S. government, and especially those of the Biden administration. Importantly, an apology should include a firm commitment to never use torture again—whether for intelligence gathering or any other reason. Subsequent administrations could break that commitment, of course, but it would nevertheless help rebuild the credibility of current and future U.S. critiques of human rights violations in other countries, especially if the commitment is upheld.

Beyond these initial steps, Biden should also authorize a one-time payment of financial compensation for detainees who were never charged with a crime—which happens to be the majority of the almost 800 Guantánamo Bay prisoners. While politically sensitive, such an effort to provide the option for innocent and tortured individuals to obtain compensation would help rectify some of the damage done to the credibility of the U.S. government as one that upholds the rule of law.

Finally, Biden must seek criminal accountability for those who ordered and carried out torture and other cruel, inhumane, and degrading treatment of detainees. This will be difficult, given that the declassification of documents needed for the collection of evidence to build strong cases will continue to be stalled by politics and national security priorities.

Torture, however, is a serious crime, and accountability efforts, including declassifying the remainder of the Senate’s CIA torture report, must continue. Government lawyers and senators determined to protect the rule of law by advocating for transparency will need to continue this fight for declassification, as Sen. Dianne Feinstein and others have done.

The absence of such accountability has already sent a signal to the rest of the world that the United States does not consider torture and other forms of cruel, inhumane, and degrading treatment severe enough to warrant justice. Ultimately, it embodies a very troubling message: If another Guantánamo were to happen, those responsible would benefit from the impunity their predecessors enjoyed, because the United States is above international law and, indeed, its own Constitution.

Some Americans may laud what they regard as 20 years of successful counterterrorism policies that have prevented another 9/11 from happening on U.S. soil. They should focus their efforts on preventing another Guantánamo atrocity from happening as well.