By Andy Worthington, August 25, 2015
Since November 2013, 17 prisoners at Guantánamo have had their cases reviewed by Periodic Review Boards, panels consisting of 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. The review boards are -- albeit slowly -- examining the cases of all the men still held who are not facing (or have faced) trials (ten of the 116 men still held) or who have not already been approved for release by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in January 2009 (44 of those still held).
Of these 17 men, ten have been approved for release (and two have been freed), while four others have had their ongoing imprisonment approved, on the basis that "continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States." Three other decisions have yet to be taken, and 47 other men are still awaiting reviews.
In recent weeks, reviews have also taken place for two of the four men whose review boards concluded that they should continue to be held -- Fayiz al-Kandari (aka Faez, Fayez), the last Kuwaiti in Guantánamo, whose ongoing imprisonment was approved last July, and Muhammad Abd al-Rahman al-Shumrani (aka al-Shamrani), a Saudi whose ongoing imprisonment was approved last October.
I have written extensively about Fayiz al-Kandari's case over the years (see this major profile from 2009), and Tom Wilner, the co-founder with me of the Close Guantánamo campaign, was his attorney for many years. We profiled him shortly after launching Close Guantánamo in February 2012, and Tom and I also visited Kuwait at that time to try to help to secure his release (see here, here and here).
Last June, when his first PRB took place, Fayiz had been disenchanted with the review process, not believing that it could lead to anything positive -- after years of enduring other review processes, under George W. Bush, that were travesties of justice. As a result, he did not engage with the process as positively as he could have done, but his opinion changed when his compatriot, Fawzi al-Odah, who had engaged more positively with it, had his release approved, and ended up being released.
Below I'm posting the opening statements of Fayiz's personal representatives (military officers appointed to represent him) and, more thoroughly, his attorney Eric Lewis, who presented a comprehensive explanation of why Fayiz should be released, including the success of the rehabilitation program, and the hope that Fayiz has in his life.
Fayiz's own contributions have not been made publicly available, but his attorney's representations ought to be sufficient to convince all but the most unthinking apologists for Guantánamo's existence that there is no case against Fayiz, and there never has been, contravening the frankly incredible allegations that have been thrown at him repeatedly during his imprisonment, and that, yet again, were wheeled out by the Pentagon in its unclassified summary for his PRB -- that he was an "al-Qa'ida recruiter and propagandist who probably served as Usama Bin Ladin's spiritual advisor" (despite being in Afghanistan for only a month before the 9/11 attacks shut down the entire training camp network). It was, however, also noted that Fayiz "continues to deny having ever conducted terrorist acts or had extremist affiliations," and that he "has remained compliant with the detention staff at Guantánamo since March 2014."
Periodic Review Board Full Hearing, 27 Jul 2015
Faez Mohammed Ahmed Al-Kandari, ISN 552
Personal Representative Opening Statement
Ladies and Gentlemen of the Board, thank you for hearing our case for Faez Al-Kandari. We appreciate your decision to hold a full Periodic Review Board following the File Review conducted earlier this year. We plan to demonstrate that Faez is not a continuing significant threat to the security of the United States of America.
Since Faez has been able to see his fellow countryman, Fawzi, transferred to Kuwait, and doing well, he has been excited to meet with his Personal Representatives and his Private Counsel to discuss his upcoming board, knowing he has a real possibility of going home to Kuwait. For the first time since his detention began, Faez is excited about his future; he's excited about seeing his family, again.
As we know, the purpose of this board is to determine if Faez poses a threat to the United States. We submit that Faez is not a significant threat to the United States, and he is ready for transfer.
Once again, our team thanks the Board for this opportunity to present information and evidence on Mr. Al-Kandari' s behalf.
Periodic Review Board Full Hearing, 27 Jul 2015
Faez Mohammed Ahmed Al-Kandari, ISN 552
Private Counsel Opening Statement
My Name is Eric Lewis, and I am pleased to appear before you this morning as Private Counsel for Fayez AI Kandari.
We are grateful that the Board has granted a full hearing after this Board's file review earlier this year.
This Board is charged with evaluating whether Fayez will pose an ongoing security threat to the United States or American citizens or any other type of security threat. We are well aware that Fayez had a full review approximately fourteen months ago in which the Board determined that his continued detention was necessary. The Board noted three factors underlying its decision: first the Board observed that Fayez appeared to have residual anger against the United States. Second, the Board was concerned with possible extremist connections of certain family members. Finally, the Board noted a lack of history regarding the efficacy of the rehabilitation program in Kuwait.
I want to address these issues directly so the Board can understand why the concerns expressed last year have been comprehensively addressed and should no longer be viewed as obstacles to Fayez' release. I hope that at the end of the presentation you will agree that today Fayez poses no ongoing security threat to the United States, its citizens or military personnel or anyone else and that clearing him for repatriation to his home in Kuwait is a wise, just and safe action to take at this time.
Let me begin with the efficacy of the rehabilitation program in Kuwait. Last year, I stood before this Board on behalf of another Kuwaiti, Fawzi Al Odah.
I detailed the clear legal authority of the Government of Kuwait to return Fawzi to a secure and controlled environment, and its sovereign commitment to do so. I spoke at length about the program of the AI Salam Rehabilitation Center, and the commitment of the Government of Kuwait and Fawzi and the Al Odah Family to implement an in-patient residential rehabilitation program for at least one year. The Government of Kuwait also assured at the highest levels that Fawzi's repatriation would be accomplished with strict oversight and security guarantees. This Board credited the bona fides of the Government of Kuwait, but it did so based on trust rather than history.
Now, we have that history. Now, we know that the Government of Kuwait has fully met and fully implemented its commitments, as has Fawzi AI Odah. The rehabilitation program is in place and working. The head of the rehabilitation program and his team have provided intensive psychotherapy, spiritual counseling, and a variety of other services that will help Fawzi reintegrate into society. You will have seen Fawzi on video and see what a difference the AI Salam Rehabilitation Center has made in his life. He is optimistic; he is happy; he is ready to resume a full, useful and peaceful life. He harbors no ill will toward anyone. He just wants to move forward.
You will also have seen the head of the rehabilitation program on video and you have seen his statement during the file review. He is a highly experienced psychiatrist and a fellow of the Royal Society of Psychiatry in Scotland. He is trusted in this sensitive area at the highest levels in Kuwait. He is confident that Fayez, like Fawzi, will also participate constructively in the program, and he is committed to assuring that Fayez receives all the rehabilitation he requires and to keeping him in the facility until he and his team are satisfied that Fayez is ready to reintegrate peacefully.
It is the opinion of the head of the rehabilitation program that Fayez has truly changed. Fayez has seen that his government can help him if he cooperates. Fayez has learned, and he is cooperating fully.
The head of the rehabilitation program is committed to supervising Fayez' care and keeping him as an inpatient at the center, on the grounds of the Kuwait Central Prison, until it is safe to release him. That's in everyone's interest.
Fayez has eagerly discussed religion with a leading Kuwaiti religious figure who has experience with many young people, including many extremists that he seeks to bring back to a proper, moderate view of Islam.
He views Fayez as well within the mainstream of religious thought in Kuwait, as non-violent and in no way an extremist. He has been appointed to a committee by the Minister ofInformation to develop nationwide strategies and programs to prevent extremism in young people, and Fayez is eager to work with him in the future.
The person responsible for counter-terrorism in Kuwait is a tough man in a tough business. He too has much experience in dealing with extremists. He has also noted Fayez' progress, his optimism and his desire for a quiet private life. He will make sure that Fayez is subject to the kind of security measures that remove any material security risk. Even after his release, Fayez will be required to check in weekly at his local police station and to be visited at home on a regular basis by the rehabilitation professionals. Fayez' internet usage, religious instruction, social networks and financial affairs, among other things, will be monitored, and he will surrender his passport and not travel. He will be subject to electronic and physical surveillance and curfew measures. Fayez understands and accepts that he will live his life subject to the scrutiny of his government.
In sum, the Board's concern that the Kuwait program had no track record has now been addressed. There is a track record and we submit it is an excellent one.
The Board has also expressed concern in its disposition about Fayez' residual anger against the United States, which the Board perceived during the last hearing. You will hear from Fayez that he approached the last hearing with a great deal of skepticism. After years of CSRTs and ARBs, which did not bring him any closer to home, he did not have confidence that he would get a transparent and comprehensive hearing that could result in his release. So,Fayez withdrew and tried to preserve his dignity by using this one chance to talk to officials of the United States to express his frustration and sense that his long and seemingly indefinite detention was unfair. To be candid, I do not think he was given much hope in advance that the process would be fair or transparent. So, rather than talk about the future, he used the hearing to vent, and this may have come across as hostility.
I think that when you see Fayez today, you will see someone who has learned from experience. He understands that Fawzi AI Odah, whom he thought had false hope, actually had real hope. The defensive cynicism you may have seen last year is gone. Fayez knows you will listen to him; you will inquire into his mind and spirit and take a fair and honest measure of him. No one can be happy about spending 13 [and a half] years here. No one should be. That is human nature. But Fayez bears no anger toward America or Americans. Some of the people he met, especially in the early years, did not treat him gently or with dignity. But many others did. You meet all sorts. Fayez is a proud man, but he is a man who engages with others with energy, enthusiasm and charm. He treats others with respect; of course, he asks for respect from others. He has learned fluent English. He is studying business. He laughs easily. When a man has hope, he is a different man. Fayez has hope. I trust you will get a sense of that today.
Finally, the Board noted concern about Fayez having exposure to extremists in Kuwait, including possible exposure to family members who may harbor extremist views. Fayez has not seen any of his family members for nearly fourteen years. When he left, most of his siblings and cousins were still kids. He accepts that he does not know how the thinking of his relatives may have developed over the years. But he is very clear that he has no wish to have contact with possible extremists or to be involved in political issues in any way. He wants to avoid anyone that would seek to involve him in any political issues, let alone extremism.
Fayez's parents have made clear that when he comes home, Fayez alone will live with his mother and father. No other relatives will live at home. We have submitted statements from Fayez himself and a video of members of his family, demonstrating their commitment to care for him on his return, which has never been in doubt. The video also demonstrates a plan for his living arrangements after he completes his rehabilitation, which is designed to provide him with monitoring and supervision.
You will also have met his distinguished older first cousins, both of whom have doctorates from leading North American Universities. They will mentor Fayez to facilitate Fayez' peaceful and constructive return to Kuwaiti society.
I would ask that the board look carefully at the statement of Fayez himself, which is most probative of his mindset, his hopes and his goals, and I invite the Board to spend time questioning Fayez and getting a sense of his mind and spirit. He acknowledges his past frustration and his occasional tendency to be uncooperative, even provocative, arising out of that sense of hopelessness. Now, he sees a realistic path to resuming his life. He acknowledges that he requires a great deal of help, having spent more than thirteen years at Guantánamo Bay. He understands that he is 40. This is a critical opportunity for him to move forward with a productive life.
In sum, Fayez is looking forward to returning to an active, caring, yet strict and responsible government, which wants very much to receive and assist him, to loving parents who yearn to have him at home, and eventually to a wife and family and to a fulfilling life, free of politics. He has spent thirteen and a half years of his life at Guantánamo. He wants only to turn the page and get on with his life. He hopes to demonstrate to you that he presents no material security risk and that his repatriation is the safe, appropriate and eminently correct step to take at this time.
More on Fayiz from Al-Jazeera
In an article for Al-Jazeera, Jenifer Fenton provided further insights into Fayiz's case, reminding readers of his well-chronicled history of charitable work, and speaking to his cousin Abdullah, who said, "He wants to catch up on lost time. He misses his family a lot."
Dealing with the risible claim that Fayiz was an "al-Qaeda recruiter and propagandist who probably served as Osama bin Laden's spiritual adviser," Fenton noted, drawing on unpublished research I conducted for Fayiz's case back in 2012, that "[t]he only prisoner who appears to have made such allegations against Kandari was Yasim Basardah," according to the classified military files released by WikiLeaks in 2011, a Yemeni regarded as notoriously reliable, including by U.S. officials. As she explained, "Even a U.S. military official voiced strong doubts about Basardah's credibility -- telling the Washington Post that he 'should not be relied upon' and believing Basardah 'strains the imagination.'"
As Fenton also noted, "More than a dozen allegations against Kandari in the JTF report come from this one discredited prisoner." She added that other allegations "come from Guantánamo prisoners who were tortured," and whose torture was confirmed in the executive summary of the Senate Intelligence Committee's report about the CIA's post-9/11 torture program, which was made publicly available in December.
Fenton also explained that former prisoner Adel al-Zamel, who also "testified" against Kandari, "told Al-Jazeera he did not know Kandari so he could not have made damning statements about him -- unless he did so under duress and therefore does not recall them."
She added that "other prisoners' accounts in the JTF report do not square with travel dates in Kandari's passport, according to his lawyers."
Fenton also spoke to Fawzi al-Odah's father, Khalid, to find out how his son is doing since his return home in November 2014, when he was sent to the Al Salam Rehabilitation Center for "reintegration counselling and physical therapy." She noted that he is 'by all accounts adjusting well to his life back home." His father said, "Fawzi is doing fine. Thank God."
Fenton also noted that, when Fawzi's rehabilitation process concludes, probably towards the end of this year, he "will move into a flat at his father's place and work -- and hopefully start a family." If released, al-Kandari would also be sent to the rehabilitation centre, a move he finds "acceptable," as Fenton noted, adding that, according to his family, he "thinks the rehabilitation would help him to become a good, contributing member of his society." She also noted that his family members "cannot bear to think about him not being cleared for transfer."
In addition, Sheikh Mohammad Abdullah al-Mubarak al-Sabah, Kuwait's minister of state for cabinet affairs, told Al-Jazeera that the Kuwaiti government is "looking forward to receiving [Kandari] back … and is committed to making sure he reintegrates well."
Last May, before Fayiz's review, Muhammad Abd al-Rahman al-Shumrani refused to attend his review, complaining, as his personal representatives put it, that he “has consistently stated his objection to the body search required to be conducted prior to his attendance at legal meetings or other appointments,” adding that he regards “the body search as conducted, which requires the guard to touch the area near his genitals,” as “humiliating and degrading.”
That, unfortunately, scuppered his chances of being recommended for release, as there was no input to counter the military's claims, as aired in the latest unclassified summary, that he was an "al-Qa'ida recruiter and fighter," and that he "almost certainly remains committed to supporting extremist causes, and has continued to incite other detainees against the detention staff at Guantánamo." Although the authorities also noted that "there are no indications that he has communicated with any extremists outside Guantánamo," they claimed that, "Since February 2014, he has indicated possible plans to reengage in terrorist activity, and he has followed the news of ISIL's growing strength in Iraq and Syria with apparent interest," adding that he has also "shared little additional insight into his post-transfer plans."
Below I'm posting the opening statements of his personal representatives, and the testimony of his attorney, Martha Rayner, who urged his release, although his own exchange with the board members is not publicly available.
Periodic Review Board Full Hearing, 04 Aug 2015
Muhammed Abd Al-Rahman Awn Al-Shamrani, ISN 195
Personal Representative Opening Statement
Good morning, ladies and gentlemen of the Board. We are the Personal Representatives of Muhammad Abd-al Rahman Bin A'wan Al-Shamrani. We will be assisting Mr. AI-Shamrani this morning with his case, aided by Martha Rayner, Clinical Associate Professor of Law at Fordham University.
Mr. Al-Shamrani has spent the last 13 and one-half years in detention at Guantánamo Bay. During this time he has endured the death of his father and witnessed from afar the decline of his mother into old-age and poor health. Mr. Al-Shamrani, himself, has slipped quietly into middle-age under detention.
As the Board is aware, this is Mr. Al-Shamrani's second Periodic Review Board. Mr. Al- Shamrani declined to participate in his first PRB, although he did correspond via letter with his Personal Representatives and submitted his reasons for non-participation to the Board. The Board recommended, in its determination statement recommending his continued law of war detention, that Mr. Al-Shamrani pursue certain courses of action that would be beneficial to him. After reflecting on the Board's recommendations and seeking the counsel of his family members, he decided to heed the advice of the Board. Specifically, he engaged in dialogue with the delegation representing the Kingdom of Saudi Arabia and has fully engaged in the Periodic Review Process since his previous Board. He has maintained a record of perfect attendance for meetings with his Personal Representatives and counsel.
A number of Mr. AI-Shamrani's traits have impressed us throughout our interactions over the past year:
Candor: He has proven exceedingly forthright and honest in his interactions with us. He is in no way one who will simply "tell you what want you want to hear".
Civility: He has never failed to be anything less than polite and professional during his interactions and discussions with us.
Insight: He is a thinker who is reflective throughout any discussions he engages in.
Later, Mr. AI-Shamrani will discuss both his past life and his desire for a better life for himself and his family in the future.
We are confident that Mr. AI-Shamrani's desire to pursue a better way of life if transferred to the Kingdom of Saudi Arabia is genuine. He is very eager to pursue the curriculum offered by the Kingdom's Muhammad Bin Nayef Center for Counselling and Care.
Periodic Review Board Full Hearing, 04 Aug 2015
Muhammed Abd Al-Rahman Awn Al-Shamrani, ISN 195
Private Counsel Opening Statement
Dear Periodic Review Board Members, Thank you for providing me with an opportunity to represent Mr. al-Shimrani before you.
And thank you for granting Mr. al-Shimrani a second PRB after determining that a significant question is raised as to whether Mr. al-Shimrani's continued detention is warranted.
Mr. al-Shimrani was taken into United States military custody at age 26. He was among the first men to be transferred to Guantanamo in January of 2002. He has spent the vast majority of his young adult life detained at Guantánamo -- over thirteen and a half years. He is now 40 years old.
I have represented Mr. al-Shimrani pro bono for nine years, since 2006. He has always communicated appreciation and respect for my work on his behalf.
At the first Periodic Review Board, you concluded that detention remained necessary because of Mr. al-Shimrani's past conduct, his "problematic" behavior since being imprisoned, and, since Mr. al-Shimrani did not attend the prior hearing, the Board's inability to assess his current mindset. You encouraged him to fully participate in any future review and meet with any representatives of Saudi Arabia who might come to Guantánamo.
Mr. al-Shimrani has fully complied with the Board's requests. He has participated in preparing for this hearing and will fully participate in today's hearing by responding to any questions you may have. Mr. al-Shimrani has met numerous times with me and the Personal Representatives during which he has exhibited patience, openness and full cooperation in response to our probing questions. Mr. al-Shimrani [redacted] expressed his willingness to participate in their well-regarded reintegration and rehabilitation program [redacted].
This response to the Board's directives demonstrates a commitment on Mr. al-Shimrani's part to engage seriously with this process and with his future. I can assure you, having represented Mr. al-Shimrani for nine years, he is true to himself. He does not take advice or engage in a course of action unless he can engage in it sincerely and transparently. His decision to engage in this process and answer your questions is genuine on his part. He wants to return to his home country and focus on his family and building a peaceful life.
As to Mr. al-Shimrani's past, he will address that in his statement to you. The core point he wishes to convey is that he is committed to moving on. He wishes to put his past behind him. Both his conduct that led to his imprisonment here and the many years of indefinite detention.
Mr. al-Shimrani welcomes participation in Saudi Arabia's well established reintegration program, which has been endorsed by the U.S. government and replicated in other countries. This program is designed to be complemented by family support. Mr. al-Shimrani has strong family support. He has three brothers, four sisters, a maternal uncle who has been an integral part of his immediate family since the death of Mr. al-Shimrani's father in 2007 and an aging mother with health problems. His family has pledged to support his reintegration home. They will provide him with a home, support in establishing employment and beginning a family of his own.
Mr. al-Shimrani will discuss his future plans in his personal statement to you. His plans are concrete and feasible, especially in light of the resources Saudi Arabia is able to provide as part of its reintegration program and in light of the moral support Mr. al-Shimrani's family has pledged to provide.
The pieces are in place to assure that Mr. al-Shimrani will not pose a significant threat to our country in the future. His transfer to Saudi Arabia -- a strong U.S. ally -- will assure the mitigation of risk through its reintegration program and continued monitoring.
Clinical Associate Professor of Law
Fordham University School of Law