End 14 Years Of Injustice

Two Yemenis Approved for Release from Guantánamo Via Periodic Review Boards As "Highly Compliant" Afghan and Another Yemeni Also Seek Release

Zahir Hamdoun, in a photograph included in the classified military files released by WikiLeaks in 2011.

By Andy Worthington, January 25, 2016

Two weeks into the Guantánamo prison's 15th year of operations, the last of a wave of recent releases has taken place -- with 16 men freed between January 6 and January 20 -- but progress towards the prison's closure continues.

Of particular significance on this front are the ongoing Periodic Review Boards. Of the 91 men still held, 34 have been approved for release. 24 of those men were approved for release six unforgivably long years ago, by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after first taking office in January 2009, but ten others have been approved for release in the last two years, by Periodic Review Boards, set up to review the cases of most of the other men still held at Guantánamo. Just ten of these men are facing-- or have faced -- trials, leaving 47 others awaiting PRBs, or the result of PRBs, or, in a few cases, repeat reviews. Just ten of the men still held are facing, or have faced trials.

Initially, the PRBs were meant to be for 48 men recommended for ongoing detention by the task force in January 2010 on the basis that they were "too dangerous to release," even though the task force's members acknowledged that insufficient evidence existed to put them on trial. President Obama at least tacitly acknowledged that this was a disgraceful basis on which to deprive people of their liberty, by promising periodic reviews of the men's cases when he authorized their ongoing detention in March 2011, although he failed to spell out why -- because, of course, not having enough evidence to try someone means that the information you hold is not evidence at all, but rumors, hunches and hearsay, from frontline interrogations made shortly after capture, when the use of violence was widespread, and from other statements made by the prisoners later, about themselves and about each other, in interrogations at Guantánamo -- or, in some cases, "black sites" -- where the use of torture, abuse and bribery (the promise of better living conditions) was widespread.

Nevertheless, it took until 2013 for the PRB process to begin, and when it did those eligible for review also included 25 men who had initially been recommended for prosecution by the task force -- until the basis for prosecution fell apart under scrutiny by appeals court judges, who concluded that the war crimes trials taking place at Guantánamo (the military commissions) consisted mainly of war crimes that were not internationally recognized, and had, in fact, been invented by Congress. The media coined a powerful description of the men eligible for PRBs -- Guantánamo's "forever prisoners," caught in a disturbing and completely unacceptable legal limbo.

Since the reviews began, in November 2013, 20 men have had decisions announced after their PRBs, and, in 17 cases, have been recommended for release, a success rate of 85%, which rather discredits the whole notion that they were "too dangerous to release."

Two problems remain, however.

The first involves the lamentably slow speed of the PRBs. With 41 men awaiting reviews, they will not be complete until long after President Obama leaves office, unless he puts pressure on the Pentagon, and on the other departments and agencies involved in the process -- the Departments of State, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff -- to do so. There is no excuse for inaction, as, in the president's executive order promising periodic reviews in March 2011 (when he authorized the ongoing detention without charge or trial of 48 men), he promised that the reviews would be completed within a year.

The second problem is that, of the 17 men approved for release, just seven have been freed, leaving critics to conclude that, in many ways, it is, yet again, an inadequate way of delivering anything resembling justice to men held, for the most part, for 14 years without charge or trial. The first man recommended for release by a PRB. for example, Mahmud al-Mujahid, a Yemeni, was approved for release on January 7, 2014, and yet is still held. See the full list of PRB decisions, and those eligible, here.

* * * * *

The two most recent decisions to release prisoners were taken on January 12. The first decision to be announced related to Zahir Hamdoun, a Yemeni, who had his case reviewed last month, when, as I noted at the time, he had recently told his lawyers at the New York-based Center for Constitutional Rights, "I have become a body without a soul. I breathe, eat and drink, but I don’t belong to the world of living creatures. I rather belong to another world, a world that is buried in a grave called Guantánamo."

Seized in a house raid in Karachi, Pakistan in February 2002, Hamdoun was just 22 years old at the time, but is now 36, and there has never been any reliable evidence against him indicating that he bore ill will towards the U.S. After the decision was announced, CCR issued a press release, pointing out that:

In clearing Mr. Hamdoun, the board, an inter-agency body including senior military and intelligence officials, noted Mr. Hamdoun’s "sustained record of compliance" at Guantanamo, his "credible desire to start a new life," and "the ability and willingness of his family and others to support him" after transfer.

Hamdoun's main lawyer, CCR Senior Attorney Pardiss Kebriaei, said after the news was announced, "The PRB’s decision means that senior government officials from a cross-section of the national security community have agreed that Mr. Hamdoun can be safely transferred out of Guantánamo. In contrast, those who continue to stoke fear about the releases of detainees approved for transfer are without fail people who have never sat across from a detainee nor reviewed all of the government’s information on him."

She added, "Mr. Hamdoun has made clear that he is willing to be transferred anywhere, and that he has strong family and institutional support for his reintegration. The administration can and must act to make these the final weeks of Mr. Hamdoun’s painful 14-year imprisonment."

Mustafa al-Shamiri, in a photograph included in the classified military files released by WikiLeaks in 2011.

Also approved for release was Mustafa al-Shamiri, 37, another Yemeni, whose story attracted media attention last month when it was admitted by the Pentagon that he was a case of mistaken identity. As I explained at the time, in his "Detainee Profile," the Pentagon conceded that he was "previously assessed" as "an al-Qa’ida facilitator or courier, as well as a trainer, but we now judge that these activities were carried out by other known extremists with names or aliases similar to [his]." The profile added, "Further analysis of the reporting that supported past judgments that [al-Shamiri] was an al-Qa’ida facilitator, courier, or trainer has revealed inconsistent biographical, descriptive, or locational data that now leads us to assess that [he] did not hold any of these roles."

In announcing its decision, the review board "noted that the most derogatory prior assessments regarding the detainee's activities before detention have been discredited and the current information shows that the detainee has low level military capability. Further, the detainee has been largely compliant with the guard force during detention and has engaged constructively with other detainees and the guards to resolve issues." It was also noted that, "During the hearing, the detainee was open with the Board regarding his past activities, identified his past decisions as mistakes, and the Board observed an absence of any evidence of an extremist mindset. The Board also noted the detainee' s family's commitment to support the detainee upon transfer and the absence of evidence that the detainee's family members have terrorist connections."

In the Miami Herald, Carol Rosenberg, writing of the Pentagon's acknowledgment that al-Shamiri was not who they had tried to make him out to be, wrote, "The episode served as a cautionary tale about the military’s system of profiling Guantánamo’s captives, and the unreliability of 2008-era US military assessments of the captives that were leaked in later years by the anti-secrecy group WikiLeaks."

* * * * *

As these two men await release, two other men took their turn presenting their cases by video link to the review board members, who meet at a secure facility on the U.S. mainland.

Haji Hamidullah, in a photograph included in the classified military files released by WikiLeaks in 2011.

First up, on January 12, was Haji Hamidullah (ISN 1119), also known to the U.S. authorities as Ahmid Al Razak, who is probably 52 or 53 years old. As I explained when discussing the possibility of the U.S. releasing all, or most of the remaining Afghans in 2012, he is "the son of a Mullah and someone with political influence, who explained that he had been imprisoned by the Taliban, and had then fled to Pakistan, only returning after the U.S.-led invasion, when, he said, an opponent fed false information about him to U.S. forces, alleging that he controlled a cache of weapons and led a group of 30 men who had conspired to attack coalition forces near Kabul."

His "Detainee Profile," prepared for the board by the Pentagon, claimed that he "was an Afghan militant who probably ordered and conducted attacks against Afghan and Coalition personnel during Operation Enduring Freedom." For his part Hamidullah only acknowledged that he fought with Hezb-e-lslami Gulbuddin (HIG) during the Soviet War in Afghanistan, disputing the U.S.'s claims that he "retained ties to the group thereafter, and probably collaborated with the Taliban and possibly with al-Qa'ida." The Pentagon conceded that "the nature of the relationship remains unclear," adding that "a body of reporting -- mostly from Afghan National Security Directorate sources -- refutes" Hamidullah's own claims.

In Guantánamo, however, it was noted that he "has been highly compliant with the guard staff," and "has committed far fewer infractions than most other detainees." It was also noted that he "has acted as a leader of the other Afghan detainees and probably has sought to moderate their behavior, demonstrating that he is willing to cooperate with U.S. officials when it serves his or his fellow detainees' interests." It was also noted that he "met regularly with interrogators before late 2013, probably because he believed that cooperating would increase his chances of being repatriated and because be enjoyed interacting with interrogators. However, he has provided little information of value."

It was also noted that his "behavior and statements" at Guantánamo led the board "to assess that he does not support al-Qa'ida's jihadist ideology." The board added, "He has not expressed any intent to engage in extremist activity, and probably does not view the U.S. as his existential enemy. However, his family's history of anti-Coalition and criminal activities, coupled with the widespread extremist activity in his home village in Afghanistan, would put him at risk of being drawn back into the fight if he were repatriated."

Below, in contrast, is the assessment made of him by his personal representatives, military personnel appointed to meet with and represent those undergoing the PRB process, followed by a statement by his personal counsel, the attorney Stephen D. Brown (where he is described as "Haji Hamdullah"). I found myself moved by the latter's description of an "elderly man" with diabetes, plus "knee and back problems as well as memory loss," and who, in addition, "has no technical skills, such as how to use a computer or cell phone," and "is still learning to read and write." Perhaps it's because he's around the same age as me, or, more probably, it's because, again and again, when the U.S. seized more or less insignificant Afghans in Afghanistan, and dragged them halfway around the world, their imprisonment in horrendous isolation has always seemed, palpably, to do absolutely nothing to win the hearts and minds of the Afghan people.

Periodic Review Board File Review, 12 Jan 2016
Haji Hamidullah, ISN 1119
Personal Representative Statement

Good morning, Ladies and Gentlemen of the Board. We are the Personal Representatives for ISN 1119. Thank you for the opportunity to present Mr. Hamidullah's case.

From our initial encounter and all subsequent meetings, Mr. Hamidullah has been fully cooperative and supportive in the preparation for his Periodic Review Board. From our first meeting, Mr. Hamidullah has repeatedly stated that "he does not support extremist groups" such as the Taliban, al-Qa'ida, Daesh, or ISIL. He believes Islam is a peaceful religion and desires no part with those who feel otherwise. In his approximately twelve years at GTMO, he has been very compliant with very few disciplinary infractions. Mr. Hamidullah is reclusive in the detention center as he does not believe in splashing, striking, or hunger strikes. He believes these acts to be of the devil and not condoned or supported by Islam.

Mr. Hamidullah is rather uncertain about his future. He knows in his heart that he is not a continuing or significant threat to the United States of America but does not know what country would welcome him. He was a thriving businessman prior to his detention making a good living flipping houses and cars (buying cheap, making repairs, and selling for a profit). He has spent most of his time in detention learning to read and in the process he has memorized the entire Koran. In addition to the Koran, he reads an assortment of religious books. He longs for his release and to be reunited with his family ; however, he would gladly stay at GTMO if someone would assure him that his family would be safe and provided for.

Mr. Hamidullah is a nephew, brother, father, grandfather, and was an up and coming member of his tribe. He has always shared the same beliefs that conflicts should be resolved using peaceful means, not violence. He no longer has any ties to his tribe although they have volunteered their support by selling land to assist in his reintegration back to society to live out his life in peace. His family stands ready and willing to provide any necessary support.

PC's Statement on Behalf of Haji Hamdullah ISN 1119

My name is Stephen D. Brown and I am a Retired Partner at Dechert LLP, where I served as a partner from 1991 to December 31, 2014. I am private counsel to Haji Hamdullah. Thank you for allowing me to speak with you this morning on behalf of Mr. Hamdullah. Mr. Hamdullah is an Afghan in his early 50's who has neither the ability, nor the motive, nor the opportunity, to present a continuing and significant threat to the safety of the United States if he were released from Guantánamo.

He has been an exemplary prisoner in the 13 years he has been at Guantánamo. Mr. Hamdullah is regarded by the guards as a model detainee. He has had zero incidents of self-harming gestures, statements or attempts. He has had a mere 35 disciplinary infractions since November 21, 2003. In other words, he has had a disciplinary infraction only once out of every hundred and twenty-five (124.8) days - or every four months. He has never expressed anti-U.S. sentiment or ill-will, and is one of the most compliant residents at Guantánamo Bay. He is a peaceful man who moderates the behavior of other detainees.

Mr. Hamdullah is in his early 50's. He does not know his exact age, because records were not kept in his village when he was born. His estimated age of an Afghan male in his early 50's equates to a U.S. man in his 70's. As the World Health Organization statistics show, an average life expectancy for a man born in Afghanistan is 60 years old (ranking 167th in the world) whereas the U.S. average male expectancy is 76 years old. Further, be suffers many of the ills one would expect of a 70 year-old man here in the United States. He was diagnosed with diabetes two years ago, and takes daily medication to control that diabetes, plus he has knee and back problems as well as memory loss. He has no technical skills, such as how to use a computer or cell phone, and he is still learning to read and write.

Mr. Hamdullah has never been a member of Al Qaeda or the Taliban. In fact, he was imprisoned by the Taliban in the late 1990s, but was able to escape after approximately a year and a half. He is a devout Muslim who uses his religion properly as a source of faith and strength, not as a tool to justify violence.

Mr. Hamdullah has a large and supportive family with whom he has remained in contact during his period at Guantánamo Bay. His family will support him wherever he goes.

He has never alleged to be part of any anti-U.S. efforts preceding 9/11, and has had no extremist or radical, religious contacts.

I understand that this is not the place to address the bases for his detention, but I do note that to the extent any of these allegations suggest there was an adversary of Mr. Hamdullah, his adversary was the Northern Alliance, not the United States. There is no suggestion that he had any power or influence outside of Afghanistan. Thus any concern about any ''threat" can be extinguished by sending him to a Muslim country (other than Afghanistan or Pakistan) where he would not have the resources or the ability to pose a threat to anyone, including the Northern Alliance.

In sum, he is an elderly man without resources or any motivation to present any threat, let alone a continuing, significant threat, to the security of the United States. I request that Mr. Hamdullah be sent to a Muslim country, other than Pakistan or Afghanistan, so that he can spend the remainder of his years with his two wives in peace, and without concern for his own safety.

* * * * *

Majid Ahmed, in a photograph included in the classified military files released by WikiLeaks in 2011.

On January 19, a review took place for Majid Mahmud Abdu Ahmed (ISN 41), a 35-year old Yemeni, who was just 21 when he was seized crossing from Afghanistan to Pakistan in December 2001. The group of around 30 men he was captured with were identified, by their captors, as the "Dirty Thirty," and implausible claims were made that this group of generally very young Yemenis were somehow bodyguards for Osama bin Laden, something that I have always found implausible, as bin Laden, from what I have been able to ascertain, relied more for protection on older men with far greater experience, who included Egyptians.

In a profile of Majid Ahmed (aka Majid Ahmad) in September 2010, I wrote that:

[H]e apparently admitted that he “first learned of jihad in Afghanistan” at an institute in the Yemen, “and then wanted to fight along with the Taliban.” He added that he “prayed and fell in love with the idea of dying for the sake of God,” and after being given a fatwa by a sheikh, who told him during a telephone call that “it was a good thing for Muslims to go fight jihad,” traveled to Afghanistan and “fought for the Taliban the two years he was in Kabul.” Nevertheless, as with the majority of the so-called “Dirty Thirty,” there appears to be no basis for the claim that he “was an Osama bin Laden bodyguard and was usually by his side.” He has repeatedly stated that he never met bin Laden and has also stated that “the attack on the World Trade Center was wrong because Islam did not permit people to kill innocent people.”

In its "Detainee Profile" for the PRB, the Pentagon repeated the "Dirty Thirty" claims, adding that he "has been relatively compliant during his time at Guantánamo, although he has been largely uncooperative with interrogators. In early interviews, [he] would either disengage or provide fabricated stories. including claiming that he had traveled to Afghanistan for peaceful purposes. Later, he recanted and told interviewers that he had trained and fought with the Taliban but still provided information of minimal value probably to gain incentive items."

The profile also contained an assessment that he "still harhors anti-U.S. sentiment and holds conservative Islamic views that may make transfer and reintegration to many countries difficult," and also noted that he "maintains contact with multiple former Guantánamo detainees, and has received letters from one former detainee known to have re-engaged in terrorist activities but with whom we assess [he] does not have a close relationship." I have only recently become aware of receiving letters from former prisoners being considered a potential sign of dangerousness, but it strikes me as unfair to tar a passive recipient of a letter, whether requested or not, as somehow responsible for receiving it and for sharing the sender's views.

The Pentagon also noted Ahmed's "communication with family members, none of whom appear to have any involvement in terrorist activity," and made an assessment that he would probably prefer to return to Yemen, to be with his family -- although that will not happen, of course, if the board approves him for release, as the entire U.S. establishment agrees that no Yemeni is to be repatriated from Guantánamo, and third countries must be found that will offer them new homes.

Below are the statements made for his PRB by his personal representatives and his private counsel, David Remes, who described him as a compliant prisoner, popular with the prisoners, who has availed himself of the educational opportunities made available to him in Guantánamo.

Periodic Review Board Initial Hearing, 19 Jan 2016
Majid Mahmud Abdu Ahmed, ISN 041
Personal Representative Opening Statement

Good morning ladies and gentlemen of the Board. We are the Personal Representatives of Majid Mahmud Abdu Ahmed. We will be assisting Mr. Ahmed this morning with his case, aided by Mr. David Remes.

Mr. Ahmed has been overjoyed and eager to participate in the Periodic Review Process. He has maintained a record of perfect attendance for meetings with his Personal Representatives and Counsel.

We were surprised by Mr. Ahmed's youthful appearance when we first met with him, despite spending the last 14 years in detention at Guantanamo Bay. This ascribes to the very young age at which he was recruited to go to Afghanistan.

We were favorably impressed by Mr. Ahmed's candor. He has proven forthright and honest in his interactions with us. He discussed his path to Afghanistan, from his home in Yemen through his eventual capture, with us in a clear manner.

Mr. Ahmed has proven to be engaging and extremely polite throughout his interactions and discussions with us. He is quick with a smile and exudes a warm personality.

He has taken advantage of all opportunities for education and personal enrichment while detained at Guantanamo. These opportunities include courses in Mathematics, Languages, Health and Art. We have provided examples of his coursework in his case submission.

Later, Mr. Ahmed will discuss both his past life and his desire for a better life for himself in the future.

We are confident that Mr. Ahmed's desire to pursue a better way of life if transferred from Guantanamo is genuine. He is open to transfer to any country, but would prefer an Arabic speaking country if possible.

Thank you for your time and attention. We are pleased to answer any questions you have throughout this proceeding.

Periodic Review Board Initial Hearing, 19 Jan 2016
Majid Mahmud Abdu Ahmed, ISN 041
Private Counsel Opening Statement

Good morning. I am David Remes, private counsel for Majid Mahmud Abdu Ahmed (ISN 041 ). I have represented Majid in his habeas case since July 2004 and have met with him dozens of times. In May 2005, I met Majid's family, and I have met Majid's father, a retired oil refinery worker, several times since.

Majid is outgoing and liked by other detainees. He is also compliant. Majid was held in the camp for the most compliant detainees, where detainees enjoyed communal living and personal freedom long before other detainees were extended these privileges. Majid has taken advantage of educational opportunities here, receiving high marks, and he is serious about continuing his education after he is released.

Majid prefers to be resettled in an Arabic-speaking, Muslim country, but he is willing to go to any country that the United States deems appropriate. He is willing to participate in rehabilitation or reintegration programs and to accept such security conditions as the United States deems appropriate. As mentioned, his goal is getting his life back on track.

We ask the Board to recommend that Majid be transferred to a third country, without special conditions.

Thank you.

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