Updated January 18, 2025 at 09:00 AM ET
Like Barack Obama before him, Joe Biden vowed to try to shut down the U.S. military prison at Guantánamo Bay, Cuba.
Closing the facility, which critics call a moral stain on America for having detained hundreds of suspected foreign terrorists without charge or trial, "is my hope and expectation," Biden said in 2016.
But now, with his presidency nearly over, Guantánamo remains open. It holds 15 prisoners, down from 40 when he entered office and nearly 800 at its peak. And although Biden made some progress in reducing its prisoner population, he has disappointed many proponents of Guantánamo's closure who had higher hopes for what he might accomplish.
When Biden first came into office, "there was a sense of aggressive movement" on working to shutter the prison and resolve its remaining legal cases, "and then it just sort of dissipated," said Karen Greenberg, director of the Center on National Security at Fordham Law School and author of the book The Least Worst Place: Guantanamo's First 100 Days.
"It's always been one step forward, several steps backwards -- that's been the story of Guantánamo," Greenberg added, "and I don't think the Biden administration has changed that at all…It's a tremendous failure of leadership, and has been over and over and over again."
Biden can claim some incremental successes at Guantánamo, which was opened by President George W. Bush after the 9/11 attacks as part of the so-called war on terror and received its first prisoners in 2002.
When Biden became president, he reopened a government office that works to release Guantánamo prisoners; that office had been closed by the Trump administration. Biden also transferred a handful of detainees to other countries in his early years in office.
And his administration took a major step toward winding down the 9/11 case, Guantánamo's most complicated unresolved litigation. It has still not gone to trial more than two decades after the September 11th, 2001, attacks, in part because the defendants were tortured in secret CIA prisons, compromising evidence such as confessions.
But Biden's team achieved a breakthrough in the case last summer: Alleged 9/11 mastermind Khalid Sheikh Mohammed agreed to plead guilty and serve life in prison in exchange for taking the death penalty off the table. Two of Mohammed's alleged accomplices, Walid bin Attash and Mustafa al-Hawsawi, also agreed to plea deals.
Due to those settlement agreements, the 9/11 case "was so tantalizingly close" to being resolved, said Terry Rockefeller, whose only sibling, her younger sister, Laura, died at age 41 in the World Trade Center attacks.
Then they fell apart. Two days after the deals were announced, U.S. Defense Secretary Lloyd Austin reversed them, saying they had caught him off guard -- even though plea negotiations had been publicly in the works for more than two years. Austin said he wanted the case to proceed to trial. A federal appeals court is considering whether the deals can go forward.
"The government does not seem to know what it wants" when it comes to Guantánamo, said Michel Paradis, a U.S. Defense Department attorney who represents several prisoners there.
When Austin reversed the plea agreements, he left some Guantánamo watchers speculating that he did so because the deals had enraged numerous 9/11 family members and Republican members of Congress, and the Biden administration wanted to avoid any bad publicity during his party's tight reelection campaign.
Given the context of the heated presidential race, Austin's move "leaves me, and probably a lot of other people, with the suspicion that the timing and decision-making over the summer was done for entirely political purposes," Paradis said.
Political calculations also appear to have been a factor in another Biden administration flip-flop on Guantánamo: In fall 2023, the Biden administration had been on the cusp of transferring 11 Yemeni Guantánamo detainees to Oman, which had agreed to help resettle them and provide security monitoring. All of those men had been held at Guantánamo for more than two decades without being charged or put on trial, and all had been approved for release years earlier by national security officials, yet had remained imprisoned.
But the transfer was opposed by some members of Congress, and was halted at the last minute due to concerns about instability in the Middle East following the October 7, 2023, Hamas attack on Israel.
Earlier this month, the U.S. resurrected that plan and transferred the 11 men to Oman. It also released four other Guantánamo prisoners in December.
That flurry of prisoner transfers shortly before the Biden administration leaves office "reflects a view that they couldn't do this before the election without provoking political blowback," said Georgetown University law professor Stephen Vladeck, who follows Guantánamo, "and that if they don't do it now, it's going to be at least four years, and maybe eight, before there's anyone else in a position to do it."
Members of Congress who oppose the plea deals and prisoner transfers call them tantamount to going soft on terrorists. That's despite Guantánamo prosecutors having said that plea deals are the best way to resolve the long-stalled 9/11 case, and even though the transferred prisoners are cleared for release by a parole-like board made up of representatives from several U.S. national security agencies. Some of the released prisoners are subject to security monitoring and travel restrictions.
Vladeck, too, wonders if a lack of political courage during the tight presidential race is why the Biden administration backtracked on its plea deals with the three 9/11 defendants -- and is now racing to tackle tough policy issues before Trump takes office. But Vladeck is perplexed that the White House keeps fighting the deals, considering that it no longer has to worry about losing votes over unpopular moves.
"Especially now that President Biden's a lame duck, I don't understand the politics of this at all," Vladeck said.
Attorney Ian Moss, who worked on Guantánamo issues at the White House and State Department for more than a decade and is now in private practice, gives the Biden administration credit for shrinking Guantánamo's prison population to its lowest head count since it opened.
But by waiting until the very end of his administration to release prisoners who'd been cleared for transfer years earlier, Biden let people languish behind bars unnecessarily, Moss said.
"The type of progress that we have seen over the past couple of weeks could have happened a couple of years ago," said Moss.
"Better late than never," he added. "But it's sad that politics got in the way, and it's even sadder because you're talking about human beings and their liberty."
Of the 15 remaining prisoners, two have been convicted; seven face criminal charges, including Khalid Sheikh Mohammed and the other 9/11 defendants; three have never been charged and are cleared for transfer but the U.S. needs to find countries to take them; and three have never been charged or cleared. The latter three are known as "forever prisoners."
How Guantánamo decisions will play out during Trump's second term is an open question. During his first term, Trump promised to keep Guantánamo open and "load it up with some bad dudes," although ultimately he did not send any new prisoners there and ended up releasing one.
Still, Biden's failure to close Guantánamo -- paired with the likelihood that the Trump administration will fight any efforts to shut it down -- leaves Greenberg, of Fordham Law, wondering if the military prison may stay open until its remaining prisoners die of illness or old age.
"I now cannot see a path forward for closure," she said, "and this is the first time I've really felt it's not going to happen, ever."
Scott Roehm, director of global policy and advocacy at the Center for Victims of Torture, advocates for closing Guantánamo and settling the 9/11 case through plea deals. If a federal appeals court allows the contested deals to proceed, Roehm thinks Trump could not legally stop the process.
"Does that mean an incoming Trump administration won't try?" he added. "No."
For Ian Moss, the reason to close Guantánamo is urgent and clear.
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