By Andy Worthington, February 18, 2017
The problem with Guantánamo has never been what right-wingers delude themselves into thinking it is — that it’s a perfect acceptable, secure facility for holding terrorists whose existence is undermined by liberals constantly trying to close it down, endangering America’s national security.
Instead, the problem is Guantánamo itself, a place of arbitrary detention, where very few of the 779 people held there by the military over the last 15 years have genuinely been accused of any involvement with terrorism, but where, because of the Bush administration’s contempt for internationally recognized laws and treaties regarding imprisonment, the majority of the men held — overwhelmingly, foot soldiers for the Taliban, and civilians, many sold for bounties — have been deprived of any rights whatsoever, and can only be freed at the whim of the executive branch.
For a brief period from 2008 to 2010, those held could appeal to the U.S. courts, where judges were able to review their habeas corpus petitions, and, in a few dozen cases, order their release, but this loophole was soon shut down by politically motivated judges in the court of appeals in Washington, D.C., and the Supreme Court has persistently refused to revisit the positive rulings it made regarding the prisoners’ habeas corpus rights in 2004 and 2008, hurling the men back into a disgraceful legal limbo in which their only hope for release lies, yet, again, with the presidential whim.
While President Obama did nothing to challenge the judiciary, or, more particularly, to rein in the Justice Department lawyers who fought to keep every prisoner in Guantánamo as though their lives depended on it, he did introduce an administrative mechanism for assessing who should be released and who should be prosecuted, via the high-level, inter-agency Guantánamo Review Task Force that he established shortly after taking office for the first time in January 2009. Reviewing the cases of the 240 men he inherited from George W. Bush, the task force concluded that 156 should be released, and 36 should be prosecuted, and, of those 156 men recommended for release, all but three had been freed by the time Obama left office.
Alarmingly, though, the task force also created a third category of prisoner — 48 men who, they recommended, should continue to be held without charge or trial, because they were regarded as "too dangerous to release," even though the task force members also conceded that insufficient evidence existed to put them on trial. In the real world, this meant that the so-called evidence was fundamentally unreliable, largely tainted by the use of torture and other abuse. However, when it came to the men held at Guantánamo, caution, based on a fear of releasing someone genuinely dangerous (which, in addition, was stoked by exaggerated recidivism reports emerging from within Obama’s own administration), and the prison’s foundational legacy of lawlessness meant that the extreme caution regarding these 48 men was considered acceptable.
It took two years — until March 2011 — for President Obama to come up with an executive order that purported to justify holding these 48 men indefinitely, and although that executive order was supposed to sweeten the bitter pill of indefinite detention by promising periodic reviews of the men’s cases, to be completed within a year, those reviews did not even begin for another two years and eight months.
When they did begin, in November 2013, 64 men still held at Guantánamo were deemed to be eligible for the Periodic Review Boards — 41 of the 48 men designated as "too dangerous to release" by the 2009 task force (after two died and five were freed in a prisoner swap), and 23 of the 36 men who had been recommended for trials — after the military commission trial system set up after 9/11 was almost entirely discredited in a handful of appeals that wiped out some of the few convictions secured in the commissions’ almost permanently troubled history.
Functioning like parole boards, the Periodic Review Boards sought to ascertain whether prisoners were capable of demonstrating contrition, and whether they could be trusted to establish constructive, peaceful lives after release, and, of the 64 men, 38 were approved for release between January 2014 and December 2016, including seven men whose ongoing imprisonment was recommended at their initial PRBs, but whose release was later recommended when their cases were reviewed for a second time.
Crucially, the PRB process involves administrative file reviews every six months, and, every three years, full reviews in which the government officials on the mainland can once more speak to the men directly and discuss their cases with them by video conference — although for the full reviews it should noted that, in practice, they have generally been taking place between one and two years after the initial reviews.
Although the PRBs are a flawed process, they, like the deliberations of the task force before them, have proven to be a viable way of breaking through the inertia that otherwise permeates Guantánamo, condemning those held to lifelong imprisonment with no hope of release.
And yet, under Donald Trump, they are under threat. In his first week in office, a leaked draft executive order about Guantánamo established that, as well as wanting to bring new prisoners to Guantánamo, Trump also wants to "suspend any existing transfer efforts pending a new review as to whether any such transfers are in the national security interests of the United States." That wording was not included in a second leaked draft executive order, but last week eleven notoriously right-wing Republican Senators wrote to Donald Trump to support the ongoing use of Guantánamo, and to state their belief that the PRB process "should be suspended immediately."
Exaggerating wildly, and with no evidence to back up their claims, the Senators wrote that the "standard and threshold" by which the PRBs decided whose release to approve was "dangerously flawed by subjectivity and broad interpretation," and also called for the five men approved for release when Obama left office to continue to be held. The Senators wrongly described the five as having been made eligible for transfer by Periodic Review Boards, when, in fact, three were approved for release by the 2009 task force, and just two were approved for release by PRBs.
In further propaganda-laced passages in their letter, the Senators also stated that they "encourage a full and judicious review of the PRB’s role and responsibilities by examining the insufficient criteria that informs the inadequate standard and threshold to transfer GTMO detainees," adding, "It is our belief that the transfer of any GTMO detainee must be prohibited until additional measures and policies are established that unequivocally certify the detainee does not pose a threat to our national security." The Senators also suggest that analysis by "senior military leaders such as the Chairman of the Joint Chiefs of Staff and the Chiefs of Staff of the Armed Forces should be considered," but all this is bluster, as the PRBs already feature 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, who all take their responsibilities extremely seriously.
To confirm how distorted the Senators’ assessments are, the last two months have seen three prisoners whose ongoing imprisonment was recommended by PRBs, but who were then granted full reviews of their cases because "a significant question [was] raised as to whether [their] continued detention [was] warranted," have their ongoing imprisonment recommended again, demonstrating the opposite of what the Senators claimed was a "dangerously flawed" process.
The first of the three is Moath al-Alwi (aka Muaz al-Alawi, ISN 029, Yemen), who received a second full review on November 10. Al-Alwi was recommended for ongoing imprisonment in October 2015, after a PRB hearing the month before. A long-term hunger striker, he weighed just 97 pounds at the time of his PRB, and was regarded as a "compliant" prisoner, even though he was still on a hunger strike. He had also excelled as a sculptor and a chef, but the members of the review board found him to be "evasive and hostile in response to its questions as well as failing to acknowledge or accept responsibility for his prior actions." Those "prior actions" are not significant, by the way, as al-Alwi was nothing more than a foot soldier for the Taliban.
For his second full review, his personal representative (a military officer assigned to represent him in his PRB) noted how he "is open minded and open to change," and how he "ended his hunger strike and is working to gain weight and get physically fit," adding that "he remains very positive and hopeful about his future." Al-Alwi was also represented at his hearing by attorney Beth Jacob, working with Ramzi Kassem, who has represented him since 2009. Jacob reiterated some of the points made by his personal representative, elaborating on his talent as a sculptor, and pointing out that he has a supportive family who "will be a stabilising influence on him when he is released."
Nevertheless, the board members, determining, on December 21, 2016 that "continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States," stated that they were "unable to determine whether the detainee has had a change in his extremist mindset due to his terse and vague responses to questions from Board members," and also noted his "significant noncompliance" prior to July 2015, and his alleged "susceptibility to recruitment" by extremists, although they acknowledged his artistic skills and the fact that he had brought his hunger strike to an end, "as well as his engagement with his family on future plans." They also encouraged him "to be compliant and provide more candid, thoughtful engagement in future reviews."
The second of the three is Said Nashir (aka Hani Abdullah, ISN 841, Yemen), who received a second full review on December 8. He is one of six men regarded as being part of an al-Qaeda cell in Karachi, after their capture in September 2002, who had to wait until their PRBs last year for the government to acknowledge that there was no al-Qaeda cell. The other five men were approved for release, and all were freed before President Obama left office, but Nashir had his ongoing imprisonment narrowly approved by his review board, in November 2016, seven months after his case was reviewed, because of his perceived support for violent jihad.
For his second full review, his personal representative spoke about how he was "his usual smiling self," and also described him as "extremely good natured," with good work prospects as an electrician, and as someone who, at Guantánamo, has studied computing. His attorney, Charles Carpenter, who has known him for 12 years, also drew the board’s attention to the fact that he "is a relatively simple, perhaps naive, man, not even to artifice or scheming," for whom the PRB hearings are "highly stressful."
Nevertheless, in a decision taken on January 11, 2017 (the 15th anniversary of the opening of Guantánamo), the board members approved his ongoing imprisonment,
having considered his "past ties with al-Qaida's external operations planners and senior leadership, including 9/11 conspirator Walid Bin Attash," and ignoring Carpenter’s plea for recognition that, at the time of his capture, Nashir was "in hiding, wary, and desperate to return home," and "was not in a position to interrogate the man who threw him a life ring no matter how reasonable such questions may appear in 20-20 hindsight."
The board members also considered Nashir’s "lack of credibility due to the his lack of candor and inconsistency in responses to questions from the Board, including: reasons for going to and leaving Afghanistan, and his views on violence." The board members were also concerned about "his lack of detail regarding a plan for the future and his susceptibility to recruitment," and stated that, "Due to his lack of credibility, truthfulness, evasiveness and vague answers lacking specifics," they were "unable to assess [his] intentions for the future."
The third full review was for Uthman Abd al-Rahim Muhammad Uthman (ISN 27, Yemen), whose second full review took place on December 15. Another Taliban foot soldier, Uthman had his ongoing imprisonment approved in May 2016, after a review the month before, when the board members found that he had demonstrated an "almost complete lack of candor" that "made it difficult for [them] to assess his current state of mind and intentions for the future."
For his second full review, his personal representative spoke about a "very cordial and friendly person," but one who "comes across as if he is saddened by the years spent here," adding, "When you speak with him, time seems to have stood still. His responses flow over years unlike thinking in the here and now. I had to learn this by meeting with him over the last year. I would ask how he felt about something and his answer would be his feelings from thirteen years ago."
I found this a poignant explanation for how Uthman is after his long years of imprisonment, but did not find it a source of worry from a security perspective, and it was also reassuring to hear the personal representative talk about how his family "is ready and willing to support him," and how he "has put a lot of thought into a business plan that can be conducted n any country because everyone loves ice cream."
Nevertheless, in a decision taken on January 17, 2017, the board members reiterated their previous concerns about him, although they added that they appreciated that he "was more candid in response to questions and provided a more realistic post-detention plan" than before, and they encouraged him to "continue to engage in the process, take advantage of educational opportunities while in detention, and continue to be complaint an cooperate with guards and interrogators" (and on that last point, I should note, I found it shocking that, 15 years after their capture, prisoners would be still be subjected to interrogation).
On the day the Senators wrote their letter to Donald Trump, urging him to scrap the PRBs, another full review was taking place, the first under the Trump administration. The prisoner having his case reviewed was Omar al-Rammah (aka Zakaria al-Baidany, ISN 1017, Yemen), who had had his case reviewed in July 2016 and had been approved for ongoing detention in August. Al-Rammah had been captured in Georgia, in the former Soviet Union, in 2002, but for his PRB the U.S. authorities, as I explained the time, "admitted that they had no information establishing that he was anything more than a low-level facilitator working with Muslim freedom fighters in Chechnya." His PRB was also notable for the revelation, via his recent appointed attorney, Beth Jacob, that he had not been in touch with his family throughout 14 years in U.S. custody.
Nevertheless, the board members approved his ongoing imprisonment because of his "general evasiveness," and, ironically, because he had no post-release plans — even though post-release plans would have been close to impossible for someone like al-Rammah who had not been able to make contact with his family.
Al-Rammah had a file review on November 10, at which "a significant question [was] raised as to whether [his] continued detention [was] warranted," leading to his second full review, for which his personal representative’s opening statement has been made public, but not that of his attorney. The personal representative described him as "a moderate Muslim who denounces violence, death and destruction caused by radicals," and who also "enjoys western movies, sports and video games," and "is continuing his education at GTMO by studying mathematics and English, and plans to continue his studies in Business upon his release," with a plan to open a cafe.
The personal representative also revealed that he is now in touch with his family, who are "highly educated and well traveled," and are "committed to assist him in gaining the necessary education and training to make this venture a success." The family have also "offered both the emotional and monetary support necessary for Zakaria's transition." The personal representative added that, "Since learning that Zakaria was still alive, they have had several family meetings and developed a thorough plan to include having a family member by Zakaria's side, regardless of where he is transferred to. The initial plan is to have Zakaria's mother by his side while other family members rotate bimonthly."
He was also described as "one of the better behaved detainees," who "has had very few behavioral problems during his detention," and "is described as calm and quiet by camp staff." He also "feels a strong need to make up for all that he put his mother through and is hopeful that the Board will see that he is a changed man." The personal representative concluded their statement by noting, "I do not feel that Zakaria represents a continuing or significant threat to the United States and I think he is a good candidate for repatriation."
On February 17, Carol Rosenberg of the Miami Herald noted how, even if Omar al-Rammah’s review board decides to approve his release, spokesmen for the Defense and State Departments were unable to "explain how that would happen," because the government "has dismantled the teams that negotiated resettlement arrangements" for 144 prisoners, who were sent to "such far-flung locations as Palau, Senegal and the Sultanate of Oman."
As Rosenberg explained, "Paul Lewis, the former House Armed Services Committee counsel who since 2013 worked as the Pentagon’s special envoy on Guantánamo transfers, emptied his office and left the Department of Defense on Feb. 2. Lee Wolosky, who served as the third State Department Special Envoy for Guantánamo Closure, left his job at noon on Inauguration Day and has returned to his New York law firm." She added, "Two State Department workers are still at Wolosky’s old office in a form of caretaker status, sometimes more than two if extra help is needed, according to one of the staffers," but everything has pretty much ground to a halt since Donald Trump tweeted, on January 3, that there should be no more transfers from Guantánamo.
"Sometime after that," Rosenberg notes, "a State Department staffer removed the sign from the 'Office of the Special Envoy for Guantánamo Closure,'" adding, "The holder is empty now outside the office run by Tim Andrews, described as an on-again, off-again 30-year Foreign Service Officer with a background in counter-terrorism. Some describe him as Wolosky’s former deputy; others describe him as the acting special envoy. Either way, the previous deputy, Charlie Trumbull, is gone from the office but still represents the State Department at the Periodic Review Board."
Rosenberg proceeded to discuss the two men approved for release by Periodic Review Boards who are still held — an Algerian, Sufyian Barhoumi, and a Moroccan, Abdul Latif Nasir, both approved for release last summer. With the three others approved for release by the 2009 task force, they are the five men, out of the 41 men that Obama left for Donald Trump, who have been approved for release. Just ten men are facing trials, and the other 26 had their ongoing imprisonment approved by PRBs.
Barhoumi and Nasir seem to have had their release thwarted at the last minute. Rosenberg noted how the State Department had "secured deals to repatriate [them] in the dwindling days of the Obama administration; but former Secretary of Defense Ash Carter declined to release them," and she further explained how, right now, "career government spokesmen are unable to explain what is being done, if anything, to get those cleared men out of Guantánamo Bay," adding, "Nor could State or Defense Department spokesmen say if there’s a way to arrange release, rehabilitation or resettlement if any more forever prisoners are cleared by the Periodic Review Board."
Rosenberg also noted how this limbo is alarming not just because men unanimously approved for release are still held, but also because "transfers weren’t the only thing that Wolosky, who had the rank of ambassador, ran as the State Department Special Envoy." At a public event at Fordham Law School this week, Wolosky also noted that, of "near equal importance" was "making sure that the transfer arrangements were being honored — work that required a staffer to pick up a phone or jump on an airplane to try to get a resettlement or repatriation on track."
Wolosky called this "especially critical in light of the large number of transfers in the past two years," adding that, although people can "agree or disagree" with whether or not the closure of Guantánamo is a good idea, it was important to note that "his office painstakingly negotiated 'security measures' for each transfer 'and those were policed by my office.'"
Wolosky also noted that, at the height of his work, "he had 10 staff members at his State Department office — diplomats, lawyers and national security professionals skilled in negotiating deals and following up, to 'make sure that the terms of the transfer are being honored, that the monitoring is being done,'" who looked at "everything from security-related stuff to making sure people were getting into vocational programs, the right vocational programs."
He also explained that, "If someone was supposed to get a language course, a job, even making sure medical issues were addressed, his office would step in, 'making sure the resettlements were a success.'" Rosenberg noted how the U.S. "didn’t want a freed captive spending hours of idle time at an internet cafe, chatting with fellow captives, or seeking help from a radical mosque."
As Wolosky said at Fordham, "If something bad were to happen, it’s going to be on the Trump administration."
Rosenberg also spoke to Shane Kadidal, an attorney with the Center for Constitutional Rights, who represents Sufyian Barhoumi, and who told her that "an office dedicated to handling releases may not be necessary," because George W. Bush "released more than 500 captives from Guantánamo without a special envoy." For a time, Rosenberg pointed out, "that was part of the portfolio of United States Ambassador-at-Large for War Crimes Issues."
As Rosenberg also explained, "diplomats arranged [Barhoumi’s] repatriation late last year only to have someone at the Pentagon put a hold on it." Kadidal said, "It may come down to the Algerian foreign minister calling [new Secretary of State Rex] Tillerson and saying, 'We want this guy back.' Does that need a whole infrastructure of people to finish up a partially negotiated transfer? Probably not."
In the New York Times, meanwhile, Charlie Savage, in an article about the PRBs, noted how Charles "Cully" Stimson, "a scholar at the conservative Heritage Foundation who was the top Pentagon detainee policy official in the Bush administration’s second term and who helped develop the predecessor Administrative Review Board," argued that the Periodic Review Boards served a "valuable function."
In a powerful assessment, which I hope the Trump administration will pay attention to, Stimson said, "Keeping those boards going is a separate and distinct issue from what criteria they should use and whether or not the secretaries are ultimately going to agree with any recommendation they make. I would caution the administration against scrapping them unless and until they study the issue more closely."
The only other full review that is currently scheduled is for Sharqawi Abdu Ali Al Hajj (ISN 1457, Yemen) on February 28. Al-Hajj is an alleged al-Qaeda facilitator, whose ongoing imprisonment was recommended by a PRB in April 2016, so it was was somewhat surprising when, on November 1, he was recommended for a second full review on the basis that "a significant question [was] raised as to whether [his] continued detention [was] warranted."
Two more full reviews have not been scheduled. One is for Saifullah Paracha (ISN 1094, Pakistan), a businessman, allegedly connected to al-Qaeda, whose ongoing imprisonment was recommended last April, but who was told in October, after a file review, that "a significant question is raised as to whether the detainee's continued detention is warranted and therefore an additional full review should be conducted." The Periodic Review Secretariat initially scheduled that review for November 29, 2016, but the date was then removed from the website, and no new date has been set.
The other prisoner awaiting a second full review is Haroon al-Afghani (ISN 3148, Afghanistan), one of the last prisoners to arrive at Guantánamo, in 2007, whose ongoing imprisonment was approved last July. He had a file review on January 11, in which it was established that, "After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee's continued detention is warranted and therefore an additional full review should be conducted."
In addition, the purely administrative file reviews are still taking place every six months, and in the last month have approved the ongoing imprisonment of two men — Mohammed Abdul Malik Bajabu (ISN 10025, Kenya) on January 11, based on a file review on December 6, and Abd Al-Salam Al-Hilah (ISN 1463, Yemen) on January 13, based on a file review on December 14.
In addition, five other prisoners are awaiting the results of their file reviews — Said bin Brahim bin Umran Bakush (aka Saeed Bakhouche, ISN 685, Libya), whose review took place on January 4, Mohammad Mani Ahmad al-Qahtani (ISN 63, Saudi Arabia), whose review took place on January 18, Abdullah Al Sharbi (aka Ghassan al-Sharbi, ISN 682, Saudi Arabia), whose review took place on January 25, Abdul Rahim Ghulam Rabbani (ISN 1460, Pakistan), whose review took place on February 1, and Ismael Ali Faraj Ali Bakush (ISN 708, Libya), whose review took place on February 8.
And still to come are file reviews for Mohd Farik bin Amin (ISN 10021, Malaysia) on March 8, Encep Nurjaman (aka Hambali, ISN 10019, Indonesia) on March 15, Zayn al-Ibidin Muhammed Husayn (aka Abu Zubaydah, ISN 10016, Palestine/Saudi Arabia) on March 22, and Suhayl Abdul Anam al Sharabi (ISN 569, Yemen) on April 19.