“With respect to Guantánamo, ” President Obama told reporters in November, “it is true that I have not been able to close the darn thing.” Wednesday marks the 15th anniversary of Guantánamo’s use as a detention facility for terrorism suspects. On Inauguration Day, the prison will pass to its third president, almost eight years after Obama ordered it closed within 12 months. After a transfer of four Yemeni captives to Saudi Arabia last week, Guantánamo — which held nearly 780 people under President Bush — now holds 55 men. Nineteen have been approved for release to other countries, while 26 are held in indefinite detention: “forever prisoners” of the war on terror. Only 10 have been charged with a crime. NAME NATIONALITY CONVICTED Ali Hamza al Bahlul Yemen GUILTY PLEA Majid Khan Pakistan Ahmed Al-Darbi Saudi Arabia INDEFINITE DETENTION Haroon al-Afghani Afghanistan Muhammad Rahim Afghanistan Said bin Brahim bin Umran Bakush Algeria Zayn al-lbidin Muhammed Husayn (Abu Zubaydah) Gaza Encep Nurjaman (Hambali) Indonesia Mohammed Abdul Malik Bajabu Kenya Ismael Ali Faraj All Bakush Libya Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi Libya Bashir bin Lap Malaysia Mohd Farik bin Amin Malaysia Abdul Rabbani Pakistan Mohammed Rabbani Pakistan Saifullah Paracha Pakistan Abdullah Al Sharbi Saudi Arabia Mohamed Mani Ahmad al Kahtani Saudi Arabia Guleed Hassan Ahmed Somalia Abd Al-Salam Al-Hilah Yemen Hassan Bin Attash Yemen Khalid Ahmed Qasim Yemen Moath Hamza Ahmed Al-Alwi Yemen Omar Mohammed All Al-Rammah Yemen Said Salih Said Nashir Yemen Sanad Al Kazimi Yemen Sharqawi Abdu Ali Al Hajj Yemen Suhayl Abdul Anam al Sharabi Yemen Uthman Abd al-Rahim Muhammad Uthman Yemen TRANSFER Abdul Sahir Afghanistan Haji Wali Muhammed Afghanistan Karim Bostan Afghanistan Sufylan Barhoumi Algeria Abdul Latif Nasir Morocco Ravil Mingazov Russia Jabran al Qahtani Saudi Arabia Ridah Bin Saleh al Yazidi Tunisia Mjuayn Al-Din Jamal Al-Din Abd Al Fadhil Abd Al-Sattar UAE Ghaleb Nassar Al Bihani Yemen Hail Aziz Ahmed Al-Maythali Yemen Mohammed Ahmen Said Haider Yemen Mohammed al-Ansi Yemen Musab Omar All Al-Mudwani Yemen Mustafa Abd al-Qawi Abd al-Aziz al-Shamiri Yemen Salman Yahya Hassan Mohammad Rabei’i Yemen Tawfiq Nasir Awad Al-Bihani Yemen Walid Said bin Said Zaid Yemen Yassim Qasim Mohammed Ismail Qasim Yemen TRIAL Nashwan abd al-Razzaq abd al-Baqi (Nadi) Iraq Ali abd al Aziz Ali Pakistan Khalid Sheikh Mohammed Pakistan Mohammed al Nashiri Saudi Arabia Mustafa Ahmad al Hawsawi Saudi Arabia Ramzi Bin Al Shibh Yemen Walid Mohammed Bin Attash Yemen Source: Margot Williams, The Intercept

Last Updated: January 05, 2017 In interviews with The Intercept, several attorneys who represent Guantánamo detainees expressed deep uncertainty about the fates of their clients and the other detainees who will pass into Donald Trump’s custody. “This is nothing new, this type of uncertainty,” said Gary Thompson, a lawyer at the law firm Reed Smith LLP who represents detainees on a pro bono basis. “But we’re at a point in time where there’s a window closing — fast — on the release of several dozen men who are fully cleared for release.” Throughout the 2016 campaign, Guantánamo has been an object of Trump’s sensationalist rhetoric, but the president-elect has wavered on the question of whether he might actually release cleared detainees. “As far as Guantánamo is concerned,” Trump told the Miami Herald in August, “I want to make sure, 100 percent sure, that if we’re going to release people, number one — they are going to be people that can be released, and it’s going to be safe to release them.” But in response to recent detainee transfers, Trump seemed to close the door on that possibility, tweeting that there “should be no further releases from Gitmo,” because the detainees are “extremely dangerous people.”

There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield. — Donald J. Trump (@realDonaldTrump) January 3, 2017

During his campaign, Trump promised to “load [Guantánamo] up with some bad dudes,” and even said he would be comfortable prosecuting American citizens for terrorism in Guantánamo’s military commissions — which is prohibited by the 2006 Congressional law that established them. “You just can’t predict” Trump, said David Remes, a human rights attorney who has represented numerous Guantánamo detainees. “To some extent it depends on whether he’s in a good mood or bad mood, or magnanimous or vindictive, at any particular time.” Martha Rayner, a law professor at Fordham University, said that there is nothing new about the detainees being subject to the whims of politics. “There has been vast uncertainty for the entire duration of Guantánamo. That’s what detention without trial — indefinite detention — is. It is the definition of uncertainty. These men have always been at the mercy of politics, and how politics have changed over the years.”

Photo: John Moore/Getty Images

Obama’s Legacy When Obama inherited Guantánamo Bay in 2009, he enjoyed bipartisan support for closing the prison. It was one of the campaign issues that he and his Republican opponent John McCain agreed on. Even President Bush, who had created the legal black hole, said “I very much would like to end Guantánamo; I very much would like to get people to a court.” But when Obama started acting on his campaign promise to the close the facility, congressional Republicans quickly realized it was a way to attack the popular, charismatic president who had thrashed them at the polls. In 2009, Obama tried to resettle two detainees in the United States. Both were ethnic Uighurs, or Chinese Muslims living in Afghanistan when the war started. Both had been ordered released by a federal judge and cleared of terrorist involvement by the Bush administration, and were going to be resettled in an community of Uighur immigrants in Northern Virginia and monitored. But after furious backlash from Republicans — which included Newt Gingrich trying to connect the two to the 9/11 attackers — Obama backed down. The damage was done: Obama’s treatment of war-on-terror captives was now a political vulnerability. Later that year, Umar Farouk Abdulmutallab — the Christmas-day “underwear bomber” — would smuggle a bomb on board a plane and try to detonate it over Detroit. The pace of transfers out of Guantánamo afterward would slow to a trickle.

Photo: Pablo Martinez Monsivais/AP

The Democrat-controlled Congress then reversed course and began passing restrictions that banned the transfer of detainees to the United States and made it more difficult to resettle them abroad. Between 2011 and 2012, there was a 15 month stretch where no prisoner had been transferred at all. Republican fear mongering had turned the Democrats against the president’s plan. In 2009, according to Gallup, a narrow majority of Democratic voters wanted the prison closed and the detainees resettled, but by 2014, more Democrats wanted to keep Guantánamo open than shut it. Detainee hunger strikes led to increased public pressure to do something, and the Obama administration began accelerating the pace of Guantánamo transfers after 2013. In the last two years the number of detainees has shrunk from more than 120 to 55. One of the 19 people Obama approved for transfer who will likely still be there when Trump takes over is Ravel Mingazov — a former ballet-dancer with the Russian Red Army, and a client of Thompson’s. Obama’s task force recommended he be prosecuted in 2009, but a federal judge in 2010 found no evidence to detain him, and ordered his release. The Obama administration appealed and fought the ruling, before approving him for transfer last July. Thompson declined to comment on the status of his transfer, but described the process as a “legal black hole.” “If we detain someone,” said Thompson, “we say why. We bring charges. There’s a process for reaching a conclusion or determination that justifies detention.”

Photo: John Moore/Getty Images

Continuing Indefinite Detention In addition to inheriting the prison and its captives, Trump will assume the troubling power that enables it to exist: the authority to hold terror suspects in military detention with a limited ability to challenge their own captivity. Very early on in his presidency, Obama realized that he did not want to prosecute or release every detainee in Guantánamo — that he would indefinitely detain a small number that he could not prosecute, but that he nonetheless considered too dangerous to release. As New York Times Reporter Charlie Savage points out in his book Power Wars, Obama’s initial executive order to shutter the facility gave the executive branch four options for its prisoners: releasing them, prosecuting them, transferring them to another country, or employing another “lawful means” of resolution — a euphemistic reference to indefinite detention. Seven years later, when Obama presented his final blueprint for how to close Guantánamo, he proposed to transfer these “high-value” detainees to the mainland United States, but still without a trial or release date. The proposal reserves the option to detain them for decades further — estimating the cost of holding them out to 20 years. “The Obama administration was no different than the Bush administration on this concept – that detention without trial is lawful,” said Rayner. In the meantime, Obama weakened the due process protections for detainees. In 2008, the Supreme Court ruled that Guantánamo detainees have a right to challenge their detention by filing petitions of habeas corpus in federal court. That ruling lead to a flood challenges in the D.C. District Court — most of which the Obama administration fought. After losing most of its cases in lower courts, the Obama administration began appealing them to the conservative D.C. Court of Appeals, which reversed all of the favorable verdicts. The Appeals Court gradually imposed legal standards that made it nearly impossible for detainees to secure release, effectively hollowing out the ability of “forever prisoners” to challenge their continuing detention.

Photo: Ben Fox/AP

One of those prisoners is Saifullah Paracha, a Pakistani businessman, one of Remes’s clients, and one of the 26 prisoners the Obama administration considers too dangerous for release. Paracha, who started import-export and broadcasting businesses in Pakistan, was lured to Thailand in 2003 by people posing as buyers, where the U.S. arrested him. He has been in Guantánamo since 2004. At 69, Paracha is the oldest detainee currently in Guantánamo, and suffers from heart disease, diabetes, and arthritis. He has been hospitalized several times for chest pains, and is now allowed to keep nitroglycerin in his cell, according to Remes. Due to congressional transfer restrictions, he cannot be transferred to the United States for medical care.