By Andy Worthington, June 25, 2014
Last week, largely unnoticed in the mainstream media, a Periodic Review Board (PRB) took place -- at a military location in Virginia -- for Muhammad Murdi lssa al-Zahrani, one of the last Saudi nationals held in the prison, who joined the board -- and was visible to the handful of media representatives in attendance -- via video link from Guantánamo. 44 or 45 years old, he was seized in a house raid in Lahore, Pakistan, at the end of March 2002.
The PRBs -- which involve representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff -- were established last year to review the cases of 71 prisoners designated for ongoing imprisonment without charge or trial -- or for trials that were later dropped -- in January 2010 by the high-level, inter-agency Guantánamo Review Task Force that President Obama appointed shortly after taking office in 2009.
Those prisoners who were designated for ongoing imprisonment without charge or trial had those designations made on the basis that they were "too dangerous to release," even though insufficient evidence existed to put them on trial -- highlighting, to acute observers, that there are fundamental problems with the so-called evidence.
Al-Zahrani's was the ninth review to take place, and of the eight previous hearings (held between November 20 last year and June 12 this year), five decisions have been reached by the board. Three prisoners have been recommended for release (see here, here and here), while two others have had their ongoing imprisonment approved by the board members (see here and here).
These latter two decisions have not been reassuring for U.S. justice, as the supposed evidence is, at best, thin -- and I find it unconvincing that either man constitutes a threat to the U.S. In addition, although it is, in theory, reassuring that three insignificant prisoners have been recommended for release, in practice none of these men have been freed, because they are Yemenis, and the entire U.S. establishment is unwilling to release Yemenis because of the perceived security problems in their home country. As a result, they join 55 other Yemenis who were cleared for release by the task force in January 2010, but are still held.
Last Thursday (June 19), as Reuters reported, Muhammad al-Zahrani, who allegedly fought in Afghanistan prior to his capture, where he lost a leg, "appeared at the hearing dressed in a white shirt with a long beard and glasses, which he took on and off throughout the proceedings open to public viewing."
Two military representatives, appointed to represent al-Zahrani, spoke for him. As Reuters explained, they stated that he had "declined to be represented by a lawyer and until this week had refused to participate in the hearing process," although they did point out -- which Reuters omitted to mention -- that he had been cooperative all along, meeting with them and providing them with information.
In detailed testimony that I'm posting below, the representatives made a case for why he should no longer be detained, stating that he did not meet the criteria to be regarded as a significant threat to the United States, and making a powerful topical reference to the recent prisoner exchange -- of five Taliban leaders for Sgt. Bowe Bergdahl, the sole U.S. prisoner of war in Afghanistan -- which led to a sustained outburst of manufactured hysteria from Republicans and much of the mainstream media.
This failure to "meet the criteria to be regarded as a significant threat," the representatives stated, "is especially true in light of mitigating factors put in places to enable the recent release of five Taliban detainees, who were all classified as higher threats than Mr al-Zahrani." Reuters' title for the article about the hearing spelled this out clearly. "Guantánamo inmate up for transfer lesser threat than swapped Taliban," it read.
However, Reuters failed to include what the representatives went on to say, which was very important, as it ought to provide the Obama administration with clear and defensible reasons for releasing other prisoners. "These same mitigators provided sufficient assurance that those five detainees no longer pose a continuing significant threat to United States' national security," the representatives wrote, "which implies a lower level threat such as Mr. Al-Zahrani, if afforded similar mitigators like those available in Saudi Arabia, would no longer pose a continuing significant threat."
In their presentation, the representatives also pointed out that al-Zahrani has indicated that "he has a home, a job to return to, back-pay for his time during detention, and associates within the Saudi Ministry of the Interior to help him as he starts his new life," and that he wishes to be with his family, in particular to support his mother, as he feels acutely the loss of his father, who died three years ago. His file indicates that. from 1992 to 1999, he "worked in Jeddah as an assistant in the legal department of the Safoula Oil Production Company."
The representatives also drew extensively on descriptions of what the stress of a regime like Guantánamo does to prisoners, via a psychiatrist's report that was submitted on behalf of Ghaleb Al-Bihani (ISN 128), who was cleared for release on May 28. They note that the claims he made to interrogators were "purposely exaggerated and conflicting as is typical of many detainees."
They added, "We do not know why Mr. AI-Zahrani provided false or overstated accounts, nor the circumstances under which he provided them, but the previously cited psychiatrist's report provides some insight as to why previous detainees have given conflicting statements"; namely, "attempting to 'improve their situation,' meaning reducing interrogator use of enhanced interrogation techniques, to regain comfort items removed prior to interrogation, and to have access to medical attention and treatment."
In addition, as the representatives noted, "some detainees reported that prolonged sleep deprivation led to their reporting conflicting stories as a result of endorsing information they thought the interrogators were seeking, because of confusion or in hope that they would be allowed to sleep."
They also added that, significantly, "all negative accounts in Mr. Al-Zahrani's classified dossier that make him out to be other than a low-level fighter have been refuted by either Mr. Al-Zahrani, other detainees, or his interrogators."
In contrast, the military's claims about al-Zahrani -- including an allegation that he "almost certainly joined al-Qa' ida" -- fail to reflect these important points. "Information about [his] activities before detention is derived almost entirely from his own statements, which largely are uncorroborated but are consistent with al-Qa'ida's operational practices," the summary claims, adding that, although al-Zahrani "possibly at times has exaggerated his role in and significance to al-Qa'ida," he "remains devoted" to the organization -- a claim for which there is, simply, no evidence.
Significantly, although the authorities suggest that, in Afghanistan, al-Zahrani "almost certainly cultivated direct and indirect relationships with numerous terrorist leaders who could provide him avenues to reengage" if released, this is actually nothing more than shrill speculation, More realistic is the conclusion that, if al-Zahrani was repatriated to Saudi Arabia, he would be in a position to "return to his family after completing the Kingdom's rehabilitation program," because he "has no known associations with at-large extremists, based on his lack of interaction with anyone outside of Guantánamo except for family members who have no identified extremist affiliations."
The first part of the personal representatives' statements is followed by a second part, specifically involving a threat assessment that demonstrates "why Mr. Al-Zahrani does not rise to the standard of 'continuing significant threat to the security of the United States.'" This second part of the presentation involves references to documents that were not made publicly available, but the most important aspect of the presentation does not require any additional information -- it is an even more detailed explanation than in Part 1 of why the mitigating factors accompanying the release of the five Taliban prisoners can only support the release of al-Zahrani as well, because he poses a lower threat. It is an argument that I hope to see used again in other review boards to come, as I believe it is an important point.
Good morning ladies and gentlemen of the board. We are the Personal Representatives for Muhammad Murdi Issa Al-Zahrani. We will be presenting Mr. Al-Zahrani's case to you today without the aid of private counsel. Additionally, until recently Mr. Al-Zahrani had elected not to participate during this process, but we want you to know that although he had made the personal decision not to participate, he has been cooperative. He met with us in person and provided information to us via a letter that includes some information about what he would like to do in the future.
We will present a two part statement to you today. I will briefly discuss information about Mr. AI- Zahrani's detention that will shed light on his current circumstances and frame of mind, and will then project forward to Mr. Al-Zahrani's life post detention. Then, as this Board's recommendation is made on the basis of whether a detainee presents a "continuing significant threat to the security of the United States," my colleague will compare Mr. Al-Zahrani's threat potential to the standard established for a "continuing significant threat." On our PRS [Periodic Review Secretariat] website, a "continuing significant threat" is defined as "a threat to the national security of the United States that cannot be mitigated through feasible and appropriate security measures implemented by another country, organization, or entity." What you will come to see is that Mr. Al-Zahrani's threat potential is largely overstated, due to conflicting information he provided, and that even if his self-described worst case propensities were true, he does not rise to the standard of a continuing significant threat to national security. Why? Because he lacks the capability and his opportunities to impose harm can be sufficiently mitigated.
Mr. Al-Zahrani has spent 12 years at Guantánamo Bay and "presented few significant force protection problems relative to other detainees." His limited negative conduct while detained is that of an inmate, rather than that of a terrorist. Such resistance and non-compliance with correctional staff is commonplace in penal systems, including in the U.S., and reflects that of a typical inmate who has been influenced by 12 years of detention, frustration, separation from family, and boredom with no possible end in sight. His limited efforts toward non-compliance while detained have no bearing on any risk he might pose toward the United States. Accordingly, we recommend that the Board discount this information in your assessment of Mr. AI-Zahrani's future risk potential.
As mentioned, Mr. Al-Zahrani declined to participate in this process until recently, but this should not be seen as a harboring of ill intent toward the United States, nor should it be detrimental to the Board's recommendation. From the psychiatrist's report submitted previously on behalf of ISN-128 [Ghaleb Al-Bihani, cleared for release on May 28], episodic refusal to meet and participate in various activities is common among the detainees, and is "often rooted in a detainee's sense that their indefinite confinement constitutes cruel, degrading, and inhumane treatment." Further, this psychiatrist states, "deprived of the ability to make basic decisions ... they may seek to be able to influence decisions in the small arena left to them." Hence, while it may seem counterintuitive to decline participation in the PRB process, non-participatory tendencies among the detainees can be viewed as "exerting their humanity and autonomy by engaging in what they refer to as 'peaceful protest' of their detention."
In the specific case of Mr. Al-Zahrani, his unclassified dossier also indicates a diagnosis of what the Mayo Clinic classifies as a treatable, stress-related mental illness brought on by any number of significant life changes. Mr. Al-Zahrani's condition may precipitate from the injuries, as he alludes to in his letter, or his indefinite captivity. In either case, the typical symptoms of this condition may shed some light on why Mr. Al-Zahrani made the choice of not participating until this week.
During Mr. Al-Zahrani's detention, he has missed significant changes in the lives of many family members. Now, as per his unclassified dossier, his letter to us, and consistent indicators in camp records, Mr. Al-Zahrani desires to be reunited with his family and make up for lost time. Indeed, Mr. Al-Zahrani states his only wish is to see his ailing mother before she passes away; an opportunity he missed when his father died three years ago.
Mr. Al-Zahrani benefits from being a Saudi citizen and according to the unclassified dossier, "the Saudi government has provided the appropriate security and humane treatment assurances to facilitate the transfer of detainees." Resultantly, "the United States has transferred over 100 detainees, including two in 2013, to Saudi Arabia." Saudi Arabia has established a robust rehabilitation and aftercare program "focused on changing the attitudes of Saudis who have been involved in terrorism and include detainees transferred from the Guantánamo Bay detention facility. These components [of the program] include counseling, religious instruction, sports, and social and therapeutic activities." Additionally, family members are able to visit the detainees going through the program. Mr. AI-Zahrani told us he is willing to go through the government program, agree to any terms leading to his release, and will fully cooperate with any stipulations his country places on him. We believe this shows his desire to capitalize on a second chance at life and return home to be with his family.
As we share Mr. Al-Zahrani's own words with you, we believe you will see that his actions do not imply an unwillingness to cooperate. Rather, you will see a middle-aged, ailing man who desperately wants to return to Saudi Arabia so he can receive the healthcare provided by his country's nationalized healthcare system, go through the country's extensive detainee rehabilitation program, reintegrate as a productive member of society, and shoulder the responsibility of taking care of his family.
Per Mr. Al-Zahrani's letter, which you will hear shortly, his entire family has voiced their commitment to assisting and supporting him during his transition home. This includes financial support, assistance with gaining employment, and embracing him into an extended family support network. We believe his close family structure will be a significant benefit in transitioning Mr. Al-Zahrani to a normal life, but their assistance may not even be necessary. Mr. Al-Zahrani indicates he has a home, a job to return to, back-pay for his time during detention, and associates within the Saudi Ministry of the Interior to help him as he starts his new life.
Mr. Al-Zahrani's dossier shows the historical information that led to his detention. As you review the additional documentation we have provided, and have the opportunity to ask questions, we urge you to consider the whole picture when making your recommendation. Evaluating Mr. Al-Zahrani's dossier requires recognition of the fact that any negative information found therein is derived from his own admission; purposely exaggerated and conflicting as is typical of many detainees. This exaggerated information serves to cloud the matter at hand and artificially inflate the "perceived risk" presented by Mr. Al-Zahrani. We do not know why Mr. AI-Zahrani provided false or overstated accounts, nor the circumstances under which he provided them, but the previously cited psychiatrist's report provides some insight as to why previous detainees have given conflicting statements. It indicates detainees often provide discrepant information, "attempting to 'improve their situation,' meaning reducing interrogator use of enhanced interrogation techniques, to regain comfort items removed prior to interrogation, and to have access to medical attention and treatment." Further, "some detainees reported that prolonged sleep deprivation led to their reporting conflicting stories as a result of endorsing information they thought the interrogators were seeking, because of confusion or in hope that they would be allowed to sleep." Moreover, all negative accounts in Mr. Al-Zahrani's classified dossier that make him out to be other than a low-level fighter have been refuted by either Mr. Al-Zahrani, other detainees, or his interrogators.
The fact is, Mr. Al-Zahrani is a man who has stated that he wants to start over. He should be given a second chance because he does not meet the defined threshold of presenting a continuing significant threat to the United States. This is especially true in light of mitigating factors put in place to enable the recent release of five Taliban detainees, who were all classified as higher threats than Mr. Al-Zahrani. These same mitigators provided sufficient assurance that those five detainees no longer pose a continuing significant threat to United States' national security, which implies a lower level threat such as Mr. Al-Zahrani, if afforded similar mitigators like those available in Saudi Arabia, would no longer pose a continuing significant threat. Thank you for your time and consideration. We are happy to answer any questions you may have throughout this proceeding. With that, I will turn it over to my colleague to discuss our threat analysis methodology.
Bottom Line Up Front: Detainee does not rise to the standard of "continuing significant threat to the security of the United States."
Ladies and gentlemen of the Board, good morning. During a previous board hearing, I characterized "threat" in terms of motive, capability, and opportunity and discussed the fact that the detainee in that case had demonstrated a lack of motive, that his dossier did not demonstrate sufficient capability, and that in your recommendation, you could ensure a lack of opportunity. As you know, every case is different, and this one will be as well.
Until the very end, Mr. Al-Zahrani explained to us that he did not wish to participate in the PRB process, and my colleague has addressed why that decision may have resulted from his captivity rather than from nefarious intent towards the U.S. Nonetheless, as a result, we have had to use a different methodology to demonstrate why Mr. Al-Zahrani does not rise to the standard of "continuing significant threat to the security of the United States."
Without active participation from Mr. Al-Zahrani, it would be presumptive of us to attempt to refute either his motive or the capability as laid out in his dossier. Instead, in our submission we used a risk/threat methodology, to show that even assuming the worst intent, and the full scope of capabilities as shown in the dossier, Mr. Al-Zahrani still does not meet the standard. In other words, any threat that he might represent can be "sufficiently mitigated through feasible and appropriate security measures implemented by another country, organization, or entity."
For the methodology used in our submission for Mr. Al-Zahrani's case, we laid out several representative scenarios which might demonstrate a threat to the U.S. or its interests if Mr. Al-Zahrani is released. I invite your attention to the matrix in Exhibit 3.5.1: Risk Scenarios. For each scenario, we defined the threat that could exist, worst case consequences for that scenario, and existing mitigating factors. All existing mitigating factors were drawn from the dossier. We assigned a severity to the consequences based on the worst case, and assigned a likelihood value to the scenario based on the stated events occurring in spite of the listed safeguards. Based on those values, we have assigned a risk to each threat scenario according to the matrix. Please see Exhibit 3.4.1 Risk Matrix for definitions of Severity, Likelihood, and Risk values, and for the Risk Matrix itself. The matrix used is common to risk assessments, although the severity and likelihood values had to be developed specifically for this application. If any risk met a certain threshold, then we would offer recommendations to the Board to attempt to mitigate the higher risks to a lower risk.
Out of all of the scenarios, the highest existing risk did not meet that threshold. Note that this value takes into account only existing mitigating factors -- it requires no special mitigations or security precautions above those currently undergone by all transferees.
In conclusion, the standard for "continuing significant threat to the security of the United States" is higher than the standard for a simple threat. On May 31st, both President Obama and Defense Secretary Hagel stated that the government of Qatar put into place measures that would ensure that the "national security of the United States would not be compromised" by the recent release of five Guantánamo detainees. In so doing, we suggest that the released detainees represent a possible upper bound to a continuing significant threat because the threat that the released detainees represent could be mitigated "through feasible and appropriate security measures implemented by another country, organization, or entity." We have demonstrated that Mr. Al-Zahrani represents a lower threat than the detainees that have been released and therefore does not rise to the standard for "continuing significant threat to the security of the United States."