The announcement that the Biden Administration has cleared two more Guantanamo Bay detainees for transfer is a hopeful sign in as much that two men have surpassed one hurdle on the way to freedom. But don’t be fooled, they may not see the light of day outside the barbed wire and concrete of the Cuban island for years. And if they do, it will most likely be in a foreign country not of their own choosing, with government monitors awaiting them. And if they are sent to the United Arab Emirates, it could be the next stop to an even greater hell.

Simple question: What kind of constitutional republic are we that supports federal measures that detain other human beings without charge for 20 years and then, when they are “cleared” to go, insist they must be released to a foreign government that agrees to treat them as criminals furthermore?

According to the New York Times, Sanad Yislam al-Kazimi and Assadullah Haroon Gul, of Yemen and Afghanistan respectively, cannot go back to their native countries because of obvious security concerns. Al-Kazimi is likely to go to neighboring Oman, which has taken some 30 repatriations over the years, and Gul’s fate is up in the air.

The Biden Administration has released but one Guantanamo Bay prisoner since he took office. But even then, the process for Abdul Latif Nasser’s release began during the Obama administration. Nasser, 56, who was never charged with a crime, actually got to return to his home country of Morocco, though he was subsequently put under investigation there, too.

So who is left? According to the Times, there are 39 detainees at the prison (which Obama had pledged to close during his time) today. Al-Kazimi and Assadullah now join 10 others of that number who are cleared to go but awaiting repatriation. Another 15 are not charged but are considered “law of war” prisoners and not cleared (news flash: supposedly we are not “at war” anymore — or are we? Apparently it is fungible). That includes Abu Zubaydah, who was waterboarded 83 times upon his capture nearly 20 years ago and still hasn’t been charged (and is still awaiting a ruling as to whether his detention is lawful). There are 10 who are awaiting trial (including the so-called 9/11 mastermind Khalid Sheikh Mohammed and four cohorts), and two already convicted. No one has any confidence that those trials will go anywhere soon, given the issues over torture evidence and the convoluted nature of the system. Meanwhile, as of 2019, each prisoner at GTMO has cost the U.S. taxpayers $13 million a year.

The military tribunal system is broken and many argue that it should have never been stood up after 9/11. It was illegal from the beginning, and efforts to “legalize” it only managed to keep it open. As we know, access to due process means one thing in America and another at Guantanamo Bay.

But yes, let’s talk about the “rules based order” some more. Biden may say his hands are tied by Congress, which won’t let him release prisoners anywhere near U.S. territory, or be tried in U.S. courts. But the fact is the interagency Periodic Review Board that clears the prisoners is under Executive Branch purview and the president should have some authority to expedite the processes and or/loosen the restrictions and conditions placed on potential host countries. Unfortunately, aside from the dense legal and administrative thicket, the stigma built up around these men has rendered them radioactive — who knows who will take them if given the right opportunity. They have been stripped of their humanity and their native lands, and to the American government they are nothing but a cost and legal burden. How long will it be before we forget why they are even there?