"This is a long term war." "This is a different type of enemy
then we’re used to." "And we're adjusting our thinking
to the new type of enemy." Days after the 9/11 attacks,
President George W. Bush launched the global war on terror. In October 2001, he sent the military
to invade Afghanistan and hunt down members of al-Qaeda
and its ally, the Taliban. It also offered cash rewards to anyone
who would help capture a terrorist. Often enough money to change lives. So, many in Afghanistan and Pakistan
took advantage of the offer and turned hundreds of men over
often with little evidence. The US sent those men to secret prisons
called black sites. Where they interrogated and tortured them. But within a month, they started searching
for a larger, permanent prison to consolidate all these prisoners. Eventually settling on this old Navy base
in Guantánamo Bay, Cuba. In January 2002, the first detainees
began arriving. One of them was Moath al-Alwi who spent the
next two decades in this prison because the US government deemed him
too dangerous to be set free. But they never charged him with a crime. And he’s not alone. Hundreds of men were imprisoned in Guantánamo. Few were charged with a crime. Some were tortured. And none received a fair trial. It’s a prison that's operated outside
the bounds of law. So, how did the US get away with this? And why is Guantánamo Bay still open? There are two myths about the people
who were picked up. One is that they are all
hardened, capable terrorists. The other is that they were all innocent shepherds. This is Dan Fried. He worked in the US foreign service for over
40 years and was assigned to Guantanamo in 2009. The conclusion I had is that there was
kind of a bell curve. At one low end, there were actually
hardened terrorists. Like this man, Osama bin-Laden’s
personal secretary. There were others that were sometimes petty
criminals and drug dealers. Not great people, but not criminal masterminds,
not terrorists. And the top of the bell curve were people
just a little more involved than what I just described. At the other end were people who were swept
up and shouldn't have been there at all. Like a group of Uigher men. Members of a mainly Muslim ethnic group who
were fleeing persecution in China. And they wound up in al-Qaeda camps and
we didn't know what to do with them and so they ended up in Guantánamo. In fact, many detainees were put in Guantánamo
based on little evidence. Yet Bush officials often described them all
as terrorist. "I mean these are people who would gnaw through
hydraulic lines of the back of a C-17 to bring it down.” "Very, very dangerous people." By 2003, there were nearly 700
Guantánamo detainees and virtually none of them were
charged with a crime. "The American flag flies again
over our embassy in Kabul." "Terrorists who once occupied Afghanistan now occupy cells at Guantánamo Bay." The Bush administration chose Guantánamo Bay
largely because of its unique location. It was under US control, but it wasn’t technically
inside the US. So, they claimed US law wouldn’t apply to
the detainees held here. If they put them in a US prison,
they'd have to either charge them with a crime and put them on trial or release them. In other words, under US law, prisoners
would have ways to get out. For bad reasons, they didn't trust
the criminal justice system. It gives too many rights to the prisoners. There was a sense that the old rules
had to be thrown out. The US also claimed that international law
didn’t apply to these detainees either. Even though 196 countries, including the US,
signed the Geneva Conventions: a set of laws protecting prisoners of war. But for those laws to apply,
the US would have to define the detainees as prisoners of war. Then they couldn’t interrogate them. And would have to release them as soon
as the conflict ends. We didn't want to give them those rights because
we were so fearful of a new terrorist attack. We wanted to interrogate and frankly some parts of the US government
interrogated through torture. I mean, that's—fact. So instead of charging them as criminals
or calling them prisoners of war the US made up a new term. Unlawful enemy combatants. The US claimed it could hold “unlawful,
enemy combatants” without charges in Guantánamo, indefinitely. And the detainees couldn’t challenge
it in court. But the US could prosecute them, in a new
court system, run entirely by the military. These courts were designed to be complex,
with rules that heavily favored the US government. For example, the government
could introduce evidence without showing it to the detainee first. This made Guantánamo Bay prison
a “legal blackhole”. The original sin is that we created
an institution outside and designed to be outside the rule of law. "No more torture in our name." "And shut it down and release everybody." "Justice for Guantánamo detainees, now a
core celebra among human rights activists." World leaders, allied governments, and
US politicians began calling for the closure of Guantánamo. Plus, Bush officials recognized that it was
actually hurting the war on terror. Gitmo was also a great recruiting tool. There were all these terrorist videos
about how evil the Americans were and we have to fight back because they imprison
people without any legal basis. They torture people. Eventually, the Supreme Court stepped in. In a series of decisions, the Court ruled
that Guantánamo detainees were entitled to challenge their imprisonment in court. It was clear the US would soon have to let
many of these detainees out. So, the Bush administration reviewed every
case and set up a transfer process. Pretty simple process. Yeah. Move them back. Mainly to Afghanistan. Nobody asked a lot of questions. Over a 5 year period, the Bush administration
transferred 532 detainees and only convicted 3 through the military courts. 5 detainees died in the prison. Four of them were reportedly suicides. That left 242 in Guantánamo when he left office with some hope that the prison would close. "Guantánamo will be closed, no later than
one year from now." On his second day in office, Barack Obama
signed an executive order to close Guantanamo within a year. His administration split the detainees into
three groups and laid out a plan with more paths out. The first group included about half the detainees who would be transferred either to their home countries. Or, for those whose home countries
were too dangerous or unstable the US would negotiate deals
with other countries to take them. Or they would be released to the US. This was the plan for the Uigher men. A second group would be tried
as criminals in a US federal court. Including five men who helped plan
the 9/11 attacks. But that still left a third group. There was a category of people we didn't feel
comfortable transferring but without sufficient evidentiary basis to
put them on trial. This final group of several dozen would be
moved to a super-maximum security prison in Illinois. Then Guantánamo could be closed. It was a good enough plan. It had risk. But keeping Guantánamo open has risks too. "Now I believe that any plan to close Guantánamo
that includes bringing these terrorists into the United States, Mr. President, is a mistake." "To do so would be nothing short of an invitation
for Al-Qaeda to operate inside our homeland." "In my view, these men are exactly
where they belong." In Congress, Republican politicians fiercely
opposed every aspect of the plan. They pushed back against transfers and putting
any detainees on trial in the US. "It will make America a more dangerous place." "And it will allow them the platform
to spew their hateful ideology." They even attacked the plan to move some into
the supermax prison. "You're also putting people who would then
start plotting for their escape from the outside in America's neighborhoods." All of a sudden when Obama comes in,
"Oh no, you can't let people go because you're letting terrorists out." By the spring of '09, this narrative
was already set: "The Obama administration: soft on terrorism”. It's fair to ask tough questions. What's not reasonable is making it
impossible for Obama when you didn't ask any hard questions about Bush. Ultimately both Republicans and Democrats
passed bills that blocked any Guantánamo detainee from coming to the US for any reason. Including for trial, imprisonment, or release. Then the Obama administration folded. They gave up at the first sign that it would
take a lot of political capital to close Gitmo. But y’all made a big deal of it. You better mean it. The Obama administration didn't mean it enough. The only two options detainees had
stayed in place but got much harder. The military courts were extremely slow
and ineffective. 3 convictions had been overturned by 2016. And transfers became more complicated. Many of the detainees were from Yemen but
couldn't be transferred back after conflict broke out there in 2011. So, the US would have to convince
other countries to take them. That was Dan’s job. For years and years, the American government
has said these are the worst of the worst. These are terrorist masterminds. And now I'm saying, no, no,
they're actually not. We shouldn't have asked other countries
to take them if we weren't willing to take them. Dan negotiated transfers for 17 Uigher men who were not allowed to be released to the US. They'd been held in Guantánamo
for more than a decade. Over 8 years, the Obama administration moved
197 detainees out of Guantánamo and convicted 5 through the military courts. Four more died inside, three reportedly
from suicide. That left 41 detainees with a new president
who wanted to keep the prison open. "We're going to keep, as you know, Gitmo,
we're keeping that open." "And we're gonna load it up with bad dudes." In 2017, Donald Trump took office as a fervent
supporter of keeping Guantánamo open. In four years, his administration
only transferred one detainee. In 2021, when President Biden took office Moath al-Alwi had been in Guantánamo for 19 years. According to his testimony, he went on a series
of hunger strikes to protest his detention. And described his life as an
“endless horror movie”. But January 11, 2022, Biden approved Alwi
and four other detainees for transfer. For Guantánamo to close, the Biden administration
needs to transfer the last remaining detainees. And the military courts need to conclude
trials for the 10 who are currently stuck in the system. Including the 5 alleged 9/11 plotters, who
have now been on trial for a decade. Once you start them outside the rule of law bringing them in the rule of law
is a lot trickier than you think. Don't throw out the rulebook in a fit of passion. You'll regret it. And we did.
