SACHA PFEIFFER, HOST:

Now to one of the country's most notorious detention facilities, the U.S. military prison in Guantanamo Bay, Cuba. Lawyers for some of the 40 prisoners still being held there say many of them have been on a hunger strike for nearly a month. They're frustrated because President Biden has said he wants to shut down Gitmo, yet they remain behind bars. Most of them have spent years there without being charged, and some have been cleared for release but still not let go.

So what's the holdup? And what would it take to close it for good? For this, we've called Lee Wolosky. He was special envoy for Guantanamo under President Obama and served on the National Security Council under Presidents Clinton and George W. Bush. Lee Wolosky, welcome to the program.

LEE WOLOSKY: Great to be here, Sacha.

PFEIFFER: I want to start with something really basic because in my view, Gitmo is largely forgotten by the general public. Would you remind our listeners why there is a U.S. military prison at Guantanamo Bay?

WOLOSKY: Sure. The military prison at Guantanamo was set up in 2002 as U.S. forces swept through Afghanistan and started rounding up individuals that we found on the battlefield, essentially, without any clear sense, in many cases, of who they were. We brought them to Guantanamo, and those - the population at Guantanamo was subsequently expanded when we apprehended individuals who we believed to be responsible for the 9/11 attacks and other terrorist attacks.

PFEIFFER: You are a vocal advocate that it should be closed. Why do you think it should be closed?

WOLOSKY: First, it's extraordinarily expensive. We spend about $13 million per detainee per year. Second, it's a clear stigma to the image of the United States, and it serves as a recruitment vehicle for extremist organizations. And third, it is increasingly, frankly, just a relic of the past that houses increasingly geriatric detainees, the oldest of whom is in his early 70s. And as President Biden takes the United States out of Afghanistan, I think it's an appropriate time to revisit other relics of that previous era and, frankly, that previous threat environment, which no longer really exists, at least in the same fashion as it did when Guantanamo was established.

PFEIFFER: When you were Obama's Guantanamo envoy, you were part of the team that tried and failed to close Gitmo. What do you consider the main reason Obama was unable to do that? The main one, and then we can talk about some specific hurdles.

WOLOSKY: Well, we actually did a reasonably good job in getting out of Guantanamo all the - almost all the detainees who the U.S. government concluded no longer needed to remain in U.S. custody. What we didn't do is figure out how to overcome a WA (ph) that purports to prevent the president from moving any detainees in Guantanamo to the United States so that they could be detained in the United States and perhaps tried in the United States. That has really served to prevent President Obama from closing Guantanamo and continues to pose a significant obstacle to any efforts that President Biden might undertake to close the facility.

PFEIFFER: The State Department used to have an office, your old office, that negotiated transfers of Guantanamo prisoners to other countries, but President Trump eliminated that office. Do you believe that office needs to be reopened in order to move prisoners to other countries and close down Gitmo?

WOLOSKY: Yes, it probably does. There are six - six of the 40 who remain at Guantanamo are currently eligible to be transferred outside the custody of the United States. And there's really no reason to delay transferring them out of the United States - out of U.S. custody. That is a job that would have been undertaken by my former office, which, as you point out, no longer exists but which I understand may be reconstituted. And there are other options, too. Even for individuals who are not cleared to be released currently, there is the possibility that foreign countries may choose to prosecute them or that they may choose to serve prison sentences outside the United States. That, too, is an undertaking that could be made by the State Department.

PFEIFFER: Is it hard to find other countries willing to take these men?

WOLOSKY: Yeah. I mean, they have ended up in many places where friends and partners of the United States agreed as part of a collective undertaking to fight al-Qaida to resettle detainees that had been detained by the United States. The countries really range from countries in the Gulf to countries in Europe to countries in South America.

PFEIFFER: The U.S. seems to have acknowledged that some Guantanamo prisoners never belonged there in the first place, but others like Khalid Sheikh Mohammed face strong evidence that they were involved in planning or financing the 9/11 attacks. So they will probably spend the rest of their lives in prison somewhere. If they don't remain at Gitmo, where do you think people like KSM should go, and how should they be dealt with?

WOLOSKY: Well, KSM currently faces a capital charge.

PFEIFFER: Death penalty.

WOLOSKY: The problem is that the military commission process has proven to be extraordinarily slow in putting him and others on trial.

PFEIFFER: That's probably understatement. I mean it's been close to two decades, and there's been no trial.

WOLOSKY: (Laughter) Yeah. That's exactly right. You know, and this, frankly, is why we need to re-evaluate where we are with respect to Guantanamo. We've so far been unsuccessful in being able to prosecute individuals allegedly responsible for an attack that occurred almost 20 years ago.

PFEIFFER: Do you actually expect Gitmo to be totally out of operation by the time Biden leaves office?

WOLOSKY: I do. I think the president is committed to closing Guantanamo.

PFEIFFER: You say you think Biden will do it, but again, Obama was unable to. So why would Biden be able to, particularly in this current political climate?

WOLOSKY: Well, I'm hoping that the Congress will see the logic of closing down a facility which really is a relic of another era, which has harmed the image of the United States and which is currently extraordinarily expensive to the U.S. taxpayer given the available alternatives and will choose to repeal the law that prevents Guantanamo detainees from entering the United States, including for purposes of serving prison sentence here in one of our prisons. That, I think, is the proper pathway to closing Guantanamo, and I think it's a pathway that the Biden administration should welcome and encourage.

PFEIFFER: That's Lee Wolosky, special envoy for Guantanamo under President Obama. Thank you for talking about this.

WOLOSKY: Thank you. Transcript provided by NPR, Copyright NPR.