America's Global War on Terror: What's next for Guantanamo's final detainees?

After 23 years, the fate of the last remaining Guantanamo detainees captured worldwide following al-Qaida’s devastating September 11, 2001, attacks is approaching a crucial juncture this month.

Legal battles and negotiations are determining the future of these remaining detainees at the US naval base in Cuba, including those accused of involvement in some of the most significant attacks of the 21st century.

US President Joe Biden’s administration is striving to resolve as many cases as possible on its own terms before Donald Trump assumes office on January 20.

During his first term, Trump acted to keep Guantanamo operational, and his defence secretary pick has also voiced opposition to its closure.

In the most prominent case, the Biden administration is making a last-minute effort this week to block a plea agreement for Khalid Sheikh Mohammed , the alleged 9/11 mastermind, and two co-defendants. This deal, which would spare them from the death penalty, was initially overseen by the Defence Department but was later disavowed.

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At its height, Guantanamo housed nearly 800 Muslim men, apprehended by the US or its allies across the Middle East, Central Asia, and elsewhere. These detainees were transported to the military-run prison at Guantanamo Bay, often shackled, blindfolded, or hooded, as part of the George W Bush administration’s declared war on terror.

Many detainees were subjected to torture while in CIA custody, complicating legal proceedings and tarnishing the US’s global reputation. According to Human Rights Watch, the majority of Guantanamo detainees were never charged or tried.

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Efforts to reduce the detainee population have now brought the number to its lowest ever: 15.

How detainees ended up in Guantanamo

The Bush administration’s January 2002 decision to detain foreigners indefinitely at Guantanamo followed the 9/11 attacks, which profoundly disrupted the US and global order. Nineteen al-Qaida hijackers crashed planes into the World Trade Center towers, the Pentagon, and a field in Pennsylvania.

As the US launched military campaigns in Afghanistan and Iraq, it turned to a section of Cuba leased by the US Navy to house and prosecute the hundreds it captured, invoking World War II-era laws on military commissions. Many detainees were later found to have no ties to extremist groups.

The decision pushed US legal boundaries. Bush’s vice president, Dick Cheney, described the detainees as “the worst of the worst” and defended military commissions. Cheney argued that the alternatives were to try the men within the US — where constitutional rights would apply—or kill them.

In 2008, the Supreme Court ruled that US treatment of Guantanamo detainees must comply with the Constitution.

Why the detentions matter

The US military response significantly diminished the capabilities of al-Qaida and later the Islamic State group to conduct large-scale attacks abroad.

However, these successes were overshadowed by the human and financial costs of the wars, the torture of detainees in the early years, and their prolonged detention without charge.

Legal experts frequently refer to the torture of detainees as the “original sin” of Guantanamo prosecutions, undermining the potential for fair trials.

Human Rights groups estimate Guantanamo’s annual costs at over $540 million, equating to $36 million per detainee based on the current population of 15.

Negotiations between the Taliban & US

The Biden administration is also negotiating with the Taliban to secure the release of three Americans believed to have been held in Afghanistan since 2022.

These include Ryan Corbett, a businessman abducted during a trip; George Glezmann, an airline mechanic detained by Taliban intelligence; and Mahmood Shah Habibi, an Afghan American telecommunications contractor.

As part of a potential exchange, an Afghan national detained at Guantanamo and central to the Senate Intelligence Committee’s report on CIA torture is reportedly under consideration for release.

However, one source indicated that the Taliban might seek the release of additional detainees in US custody as part of any deal.

Role Biden has played to transfer Guantanamo detainees

Since taking office, Biden has reduced Guantanamo’s population from 40 to 15. This includes 11 Yemenis detained for over two decades without charge, whose transfers were announced this week after Oman agreed to take them.

The US has faced challenges finding countries willing to host detainees while ensuring their safety and preventing extremist recruitment.

This week, an Iraqi detainee, Nashwan al-Tamir, is fighting a transfer to an Iraqi prison. His lawyers argue this would violate a plea agreement he made in 2022, in which he pleaded guilty to war crimes connected to al-Qaida in Afghanistan.

Six of the remaining 15 detainees have not been charged, and rights groups are urging Biden to release them before leaving office.

Fate of those charged in major attacks

Seven detainees face charges, including Mohammed and four others for their roles in the 9/11 attacks, which killed nearly 3,000 people. Others include one detainee charged in a 2002 Bali bombing that killed over 200 and another involved in the 2000 bombing of the USS Cole.

Despite decades of delays in prosecuting the 9/11 case, military prosecutors informed victims’ families this summer that a plea deal was approved after two years of negotiations.

The deal, seen as “the best path to finality and justice,” involves Mohammed and two co-defendants pleading guilty to 2,976 murder charges in exchange for life sentences.

US Defence Secretary Lloyd Austin has unsuccessfully sought to annul the agreement, arguing that only the defence secretary should decide on the death penalty in a case as significant as 9/11.

This week, the Biden administration asked a federal appeals court to block the plea agreement . Without intervention, Mohammed is scheduled to plead guilty on Friday, with his co-defendants following later.

What happens under Trump and Republican lawmakers

It remains uncertain how Trump would approach Guantanamo in a second term. During his first term, he signed an executive order to keep Guantanamo open, reversing Obama’s order to close it.

Trump’s defence secretary pick, Pete Hegseth, has supported keeping the facility open, criticising the lengthy legal proceedings for undermining the US’s stance on counterterrorism.

Outraged by the plea deals, Republican lawmakers have pledged to introduce legislation mandating death penalty trials for Mohammed and his co-defendants, requiring solitary confinement, and prohibiting their transfer to other countries.

With inputs from AP