Most of the 39 Prisoners Held at Guantanamo Bay Have Never Been Charged With a Crime

Most of the 39 prisoners still held at the Guantanamo Bay detention center in Cuba have never been charged with a crime, and the White House has made early moves to free one and place five others as eligible for release.

There has been some difficulty over what to do with the prisoners that remain, including a dozen or so that the U.S. government isn't prepared to release.

Khalid Shaikh Mohammad, a former senior al-Qaida figure considered the architect of the 9/11 attacks, is one such prisoner. He and four co-defendants face a trial by military commission that has remained in the pretrial stage for more than nine years. Mohammad and his co-defendants were in court this week for their 42nd session of pretrial hearings.

Other prisoners are dealing with significant physical and mental health issues, including the oldest prisoner at Guantanamo, a 74-year-old Pakistani man with heart disease and other ailments. He was cleared for release in May, but has remained at the prison.

"People are getting older, sicker, more and more desperate," said Pardiss Kebriaei, an attorney representing a prisoner who was recently cleared but remains held.

For more reporting from the Associated Press, see below:

Protestors To Close Guantanamo Bay
Most of the 39 prisoners that remain at Guantanamo Bay have never been charged with a crime. Amnesty International members protest to ask the closure of the Guantanamo Bay prison, at the U.S. embassy in Brussels, on June 14. Nils Quintelier/Belga/AFP via Getty Images

Following the invasion of Afghanistan, in reaction to the September 11 attacks, the U.S. wanted a place to hold the hundreds of prisoners from dozens of countries swept up by American forces, many handed over, as it turned out later, in exchange for bounties regardless of whether they had a connection to al-Qaida or the Taliban.

The administration of then-President George W. Bush declared they were the "worst of the worst," and asserted it could hold the men overseas, without charge as unlawful enemy combatants, not entitled to the full protections of prisoners of war at the sleepy Navy outpost on the jagged southeastern coast of Cuba.

A photo released by the Pentagon showed the first detainees, clad in orange jumpsuits, and kneeling in outdoor cages under the tropical sun. It was intended to show a message that "we are doing what we need to do" in a defiant message to the world, said Karen Greenberg, director of the Center on National Security at Fordham Law.

"They regretted that decision very soon afterward, within days if not weeks," said Greenberg, author of The Least Worst Place: Guantanamo's First 100 Days.

As reports emerged of brutal treatment, Guantanamo became a source of international outrage, undercutting the sympathy and support the U.S. drew after the 9/11 attacks.

The U.S. would end up holding 779 prisoners at Guantanamo and spend hundreds of millions constructing and operating what today looks more or less like a small state prison, surrounded by razor wire and guard posts at the edge of the shimmering Caribbean Sea.

Few of those held could be charged with a crime because no evidence was collected when they were captured, or there wasn't any, or it was tainted beyond use when the detainees were subjected to what the CIA euphemistically called "enhanced interrogation." Of those who remain, 10 are facing trial by military commission, with all still in the pretrial stage.

Over the years, the population has steadily shrunk as the U.S. decided some men no longer posed a threat and weren't worth holding amid legal challenges. It has also at times been roiled by hunger strikes and rocked by clashes between prisoners and guards, sparked largely by frustration at being held indefinitely without charge under what the U.S. asserted was its right under the international laws of war.

Guantanamo is smaller and quieter now. But Stafford Smith, a founder of the human rights organization Reprieve, said it's still oppressive. "It's not so much the physical conditions, it's the psychological conditions," he said. "Being told that you're in Hotel California and you can check out but you can never leave, that psychologically is immensely damaging to people."

President Barack Obama, who issued an executive order shortly after taking office directing that Guantanamo be closed within a year, ran into political opposition when his administration announced it would move the military trials to federal courts. Congress eventually added language to the annual Pentagon authorization bill prohibiting the government from moving Guantanamo prisoners into the United States for any reason.

In a sign that the political winds might be shifting, Congress recently stripped the prohibition on transferring Guantanamo Bay prisoners from the Pentagon authorization and eliminated funding for the detention center from next year's budget. It remains to be seen whether that will change, particularly after several former prisoners, released under both Bush and Obama, emerged as Taliban leaders in Afghanistan.

The Biden administration, which didn't respond to requests for comment for this article, hasn't said much about its plans.

"I don't have a timeline for you," press secretary Jen Psaki told reporters when asked in July about closing Guantanamo. "As you know, there's a process. There are different layers of the process. But that remains our goal, and we are considering all available avenues to responsibly transfer detainees and, of course, close Guantanamo Bay."

Guantanamo Bay
The White House said it intends to shutter the prison on the U.S. base in Cuba, which opened in January 2002 and where most of the 39 men still held have never been charged with a crime. In this August 29 file photo reviewed by U.S. military officials, a flag flies at half-staff in honor of the U.S. service members and other victims killed in the terrorist attack in Kabul, Afghanistan, as seen from Camp Justice in Guantanamo Bay Naval Base, Cuba. Alex Brandon, File/AP Photo