EXPLAINER: Why half of Guantanamo's prisoners could get out

The Biden administration has been quietly laying the groundwork to release prisoners from the Guantanamo Bay detention center and at least move closer to being able to shut it down. A review board that includes military and intelligence officials has now determined more than half of the 39 men held indefinitely without charge at the U.S. base in Cuba can now be safely released to their homelands or sent to another country. Decisions about several of these prisoners, including some denied under previous reviews, have come in recent weeks as the administration faced criticism from human rights groups for not doing more to close Guantanamo, releasing only a single prisoner over the past year.

A look at where things stand:

IS THE BIDEN ADMINISTRATION ABOUT TO EMPTY GUANTANAMO?

No. With the most recent decisions, there are now 20 prisoners deemed eligible for release or transfer and one due to soon complete a sentence after being convicted by military commission in a plea deal. A lot still has to happen, including in some cases finding countries willing to accept prisoners and impose security controls on them. But some could start to leave in the coming weeks and months.

DOES THIS MEAN THE UNITED STATES IS CLOSER TO SHUTTERING GUANTANAMO?

In theory, yes. But even if the U.S. releases all 20 that leaves the question remains about what to do with the rest. There are 10 who are still facing trial by military commission. They include five charged with planning and aiding the Sept. 11 attack. The death penalty case has been bogged down in pretrial litigation for years and still has no start date. One potential solution would be plea bargains to end all pending cases, but that still leaves open the question of where they would serve out any sentences.

HOW DID WE GET HERE?

The U.S. opened the detention center under President George W. Bush in January 2001 following the 9/11 attacks and the invasion of Afghanistan to hold and interrogate prisoners suspected of having links to al-Qaida or the Taliban. Around 780 men have passed through Guantanamo, hitting a peak of a about 680 in 2003. Bush's defense secretary, Donald Rumsfeld, famously referred to the men held there as “the worst of the worst,” but many were low-level militants, some had no connection to terrorism at all and few would ever be charged with a crime.

As reports of torture and abuse emerged, the detention center became a lightning rod for international criticism from American allies and a propaganda bonanza for enemies. Bush released 532 prisoners but left it to his successor to figure out what to do with the rest.

President Barack Obama pledged to close Guantanamo upon taking office. But members of Congress resisted the idea of transferring prisoners to the U.S., even to face trial in federal court. The Obama administration created the Periodic Review Board to evaluate prisoners and determine if they could be released without posing a threat to national security. Under Obama, 197 prisoners left Guantanamo.

Under Trump, a single prisoner was released as part of a plea bargain, bringing the total to 40. Biden himself has said little about Guantanamo, which has largely fallen out of the political spotlight. So far, just one prisoner has been released under his administration.

WHAT’S BEEN HAPPENING IN RECENT WEEKS?

In January, human rights groups were marking the 20th anniversary of the opening of Guantanamo and bemoaning what they saw as a lack of progress on closure. Since then, there’s been some behind-the scenes activity with the Periodic Review Board, which was never popular with detainee advocates but has been one of the few paths out of confinement. When Biden came into office, there were five cleared detainees; four were holdovers from the Obama administration and one was approved under Trump. Under Biden, 15 have been cleared so far, including more than half a dozen in recent weeks.

This is what the Biden administration considers a "deliberate and thorough process focused on responsibly reducing the detainee population and closing of the Guantanamo facility,” according to said Pentagon deputy press secretary J. Todd Breasseale.

Among the factors they consider, Breasseale said, are the age and health of the detainees. They have included Mohammed al-Qahtani, a mentally ill Saudi who authorities said intended to be one of the 9/11 hijackers but was prevented from entering the U.S. by a suspicious Customs officer at the Orlando airport. A Bush legal official concluded al-Qahtani had been tortured at Guantanamo and an effort to try him by military commission was scrapped.

Also cleared under Biden was Saifullah Paracha, a Pakistani with various medical ailments who, at 74, is the oldest prisoner at Guantanamo.

The review board, the PRB, recently cleared a 47-year-old Somali who is the first of the “high-value detainees,” designated as such because they were held in the clandestine CIA prisons known as black sites.

WHAT HAS BEEN THE REACTION?

Some Republicans in Congress have expressed outrage at the al-Qahtani decision. Rep. Mike Rogers of Alabama, the ranking GOP member of the House Armed Services Committee, called it “an appalling capitulation to the far-left.” Senate Republican leader Mitch McConnell is critical of the policy more broadly of seeking to close Guantanamo, which he recently defended as “a highly secure, humane and entirely legal place to detain terrorists.” Under the law, Congress must be notified in advance of any pending transfers or releases but is largely powerless to stop it from occurring.

Among detainee advocates, there is a wait-and-see attitude. They welcome the PRB decisions but want to see if the administration follows through with releases. Wells Dixon, an attorney for the New York-based Center for Constitutional Rights, is waiting to see what happens with his client, Majid Khan, the prisoner who has reached a plea bargain and has nearly completed his sentence. He said the administration needs to start actually releasing those who have been cleared. “It’s a positive thing for these men to be cleared," he said. “But it’s not meaningful progress toward closure unless there are transfers."