End 22 Years Of Injustice

Guantánamo: Where Being Cleared for Release Means Nothing

Mahmoud al-Mujahid

Mahmoud al-Mujahid, in a photo included in the classified military files released by WikiLeaks in 2011.

By Andy Worthington, January 26, 2014

First, the good news: on January 9, the Pentagon announced that the first Guantánamo prisoner to undergo a Periodic Review Board (PRB) had been recommended for release. The PRBs were first mentioned nearly three years ago, in March 2011, when President Obama issued an executive order authorizing the ongoing imprisonment of 48 prisoners without charge or trial, on the basis that they were too dangerous to release, even though insufficient evidence existed to put them on trial.

In issuing the executive order, President Obama was following recommendations made by the high-level, inter-agency Guantánamo Review Task Force that he had appointed after taking office in 2009, who spent a year meeting once a week to review the cases of the remaining prisoners. Lawyers and human rights groups were appalled by President Obama's decision to issue an executive order specifically authorizing indefinite detention without charge or trial, and were only vaguely reassured that, as compensation, Periodic Review Boards would be established to ascertain whether or not the men continued to be regarded as a threat, featuring representatives of six U.S. government agencies -- including the State Department and Homeland Security -- who would hear testimony from the prisoners at Guantánamo via video link in Washington D.C.

Of the 48 men initially designated for ongoing imprisonment without charge or trial, two died in 2011, but 25 others have been added since, following two major court defeats for the military commission trials. The task force had initially recommended 36 prisoners for trials, but in two rulings, in October 2012 and January 2013, the conservative appeals court in Washington D.C. scrapped two of the only convictions in the military commissions, in the cases of Salim Hamdan and Ali Hamza al-Bahlul, because they ruled that the war crimes for which they had been convicted -- primarily material support for terrorism and conspiracy -- had been invented by Congress. As most of the men recommended for trials were to be charged with these now discredited crimes, 25 of these men have been added to the 46 others facing PRBs, so that there will be 71 review boards in total.

Disappointingly, the first of the PRBs didn't take place until October 2013, as I wrote about here, and, when the first one took place, in the case of Mahmoud al-Mujahid, a Yemeni, no representatives of the media were allowed attend, a disturbing lack of transparency that I wrote about in an article for Al-Jazeera.

As a result, the news on January 9 was indeed welcome. As the Pentagon announced in a statement, "By consensus, the PRB members found that continued law of war detention is no longer necessary to protect against a continuing significant threat to the United States and that Mujahid is therefore eligible for transfer subject to appropriate security and humane treatment conditions."

David Remes, one of al-Mujahid's attorneys, said his client was “delighted” by the board’s decision, as the New York Times described it. Remes added, "Now that he’s been cleared, he should be transferred. The fact that he’s a Yemeni should not hold him back." Al-Mujahid was described as a "committed jihadist" in the classified military files released by WikiLeaks in 2011, and a bodyguard of Osama bin Laden, although that allegation came from a false confession made by a fellow prisoner, and, as the Times added, crucially, "An official familiar with the review of Mr. Mujahid’s case said that the 2008 intelligence assessment was outdated."

David Remes's comments about al-Mujahid being a Yemeni unfortunately touched on the disturbing reality of him being cleared -- the fact that all it means is that he joins 55 other Yemeni prisoners who were cleared for release by the Guantánamo Review Task Force four years ago, but are still held (along with 21 others from other countries, 77 in total out of the 155 men who are still held altogether). As the New York Times put it, these men "have long been recommended for transfer if security conditions could be met, but remain stranded at Guantánamo because of instability in Yemen."

That instability is often over-stated, and America's role in fomenting it -- through repeated drone strikes in which civilians are killed -- is rarely mentioned. However, as the New York Times noted, a recent incident that was undoubtedly damaging to hopes that prisoners will be released was an attack on December 5 on Yemen’s Ministry of Defense by what the Times described as a "Qaeda-affiliated insurgent group," which "led to an indefinite delay in a trip to Yemen by a United Nations agency that had been planned for this month." That agency, the Times stated, had been "working with the Yemeni government to develop a rehabilitation program for some prisoners in Yemen," and, separately, U.S. and Yemeni officials had been in discussions regarding using the program to deal with some of the 56 cleared Yemeni prisoners in Guantánamo.

The obstacles to releasing cleared Yemenis

The obstacles to releasing cleared Yemenis have come from two sources -- from Congress, as part of legislation designed to prevent the release of prisoners, which lasted for three years until those restrictions were eased last month, in this year's version of the National Defense Authorization Act, and from President Obama, who imposed a ban on releasing Yemenis in January 2010, after a failed airline bomb plot was revealed to have been hatched in Yemen.

Last May, in a major speech on national security issues, prompted in large part by a prison-wide hunger strike in Guantánamo, the president promised to resume releasing cleared prisoners, and dropped his ban on repatriations to Yemen. Eleven men have since been released, but none of them were Yemenis.

Administration officials told the New York Times they were "actively reviewing the Yemenis’ status on a case-by-case basis." One said policy makers were considering "several options," including "trying to persuade the Saudi government to take custody of several Yemeni detainees who have tribal or family ties in Saudi Arabia; finding other countries willing to resettle a Yemeni or two; and repatriating a particularly low-risk Yemeni to see how it goes."

That, however, fails to address the number of Yemenis awaiting release, for whom the only solution may be the establishment of a rehabilitation program. Last August, President Obama and Yemen’s president, Abdu Rabbu Mansour Hadi, issued a joint statement in which they cited the Yemeni government’s plans to “establish an extremist rehabilitation program to address the problem of violent extremism within Yemen, which could also facilitate the transfer of Yemeni detainees held at Guantánamo.”

As the Times noted, diplomatic officials told them that this statement coincided with Yemen reaching out to the United Nations Interregional Crime and Justice Research Institute, and specifically its "Disengagement and Rehabilitation of Violent Extremists and Terrorists initiative," launched in 2012, which has worked in African countries including Nigeria, in Indonesia and in Tajikistan, and whose employees include Douglas Stone, described by the Times as "a retired Marine general who was credited with successfully revamping American detention operations in Iraq, and later designed an overhaul of detention practices in Afghanistan."

The agency had held meetings in Rome and London in August and October "with Yemeni officials and a group of potential donor nations -- including the United States -- that are already working in Yemen," according to diplomatic officials, but plans for a visit were derailed by the terrorist attack in December, and a new date has not been set. Jonathan Lucas, the director of the agency, said, “We have to wait for the security situation to improve for the U.N. to start operating missions to Yemen. We don’t have any time frame at the moment.”

Someone described as being "familiar with the agency’s methods," but "who was not authorized to speak on its behalf," told the Times that its recommendations focus on "creating a secure prison center where detainees could undergo intensive, individualized assessments by psychologists, sociologists, religious leaders, family members and others," with the goal being "to identify what motivated each prisoner to get involved in a terrorist or insurgent group -- ideological commitment, peer pressure, a desire for adventure or money -- and separate the more extreme inmates from the moderates."

The source added, "Intense counseling, with the help of family and community leaders, can significantly reduce the risk that the more moderate prisoners will participate in terrorist activities after their release."

On January 22, Voice of America published an article looking at the Yemeni situation, noting:

About nine years ago, Saudi Arabia introduced the concept of "soft rehabilitation," based on the principle that terrorism can’t be defeated by force, but by incentive and religious reorientation. Saudi rehabilitation centers have been panned by some as being too soft -- in at least one center, prisoners have access to an Olympic-size swimming pool, a sauna, a gym and television. But, as program director Said al-Bishi told AFP last May, "In order to fight terrorism, we must give them an intellectual and psychological balance ... through dialogue and persuasion."
And, as Carnegie Endowment’s Christopher Boucek has noted, Saudi Arabia’s rehabilitation programs have had positive and "intriguing" results, with recidivist and re-arrest rates of only one to two percent.

Nabeel Khoury, a senior fellow of Middle East and national security at the Chicago Council on Global Affairs, who served as the U.S. deputy chief of mission in Yemen from 2004 to 2007, told VOA, "The problem is money -- and the people to staff it. Do the Yemenis have enough people with the kinds of skills you need to work with rehabilitating people who have been engaged in war and violence?"

VOA added that Yemen has asked the U.S. for $20 million to cover the cost of building a rehabilitation center, described as "a bargain compared with the $800,000 per year the U.S. spends keeping each detainee in Cuba."

Andrea Prasow, senior national security counsel and advocate in Human Rights Watch's U.S. Program, was part of a group that recently traveled to Yemen to discuss the situation with Yemen's foreign minister, Abu Bakr al-Qirbi. As she told VOA, "Mr. al-Qirbi explained that in his view, a rehabilitation facility must be one that is truly designed to help the returning men recover and reintegrate into Yemeni society." She added, however, that "security requirements should not be an obstacle to their transfer. These 56 men have never been charged with a crime and, like the others in Guantánamo, have been held in violation of international law for years."

The next Periodic Review Board, and more secrecy

Abd-al Malik al-Rahabi

Abd-al Malik Wahab al-Rahabi, in a photo included in the classified military files released by WikiLeaks in 2011.

As the Associated Press recently explained, the second Periodic Review Board is taking place on Tuesday January 28, although journalists and representatives of NGOs will not be allowed to visit Guantánamo to see it. Instead, they will be required to "view the proceedings only by video link from Washington" (although in a different location from the six board members) and they will also not be able to listen in when the prisoner in question -- Abd-al Malik Wahab al-Rahabi, a Yemeni -- speaks to members of the review board, a process that, in Mahmoud al-Mujahid's case, lasted for six hours.

The Pentagon claims that it is required to "impose restrictions for security reasons," and has stated that a transcript will be released after the hearing is over. However, as the AP noted, a recently released memo "notes that the transcript may be redacted or altered." Furthermore, neither those attending, or the prisoners themselves, will be allowed to hear any part of the hearing where classified material will be discussed.

Lawyers representing NGOs and the media are calling for "complete access" to the non-classified sections of the PRBs. Andrea Prasow told the AP, "The detainee explaining why he doesn't pose a risk, why he should go home, that seems to be the whole point of the proceeding and we won't get to see it. I think that's pretty outrageous."

Army Lt. Col. Todd Breasseale, a Pentagon spokesman, attempted to defend the government's actions, citing "the cost and logistical complexities" of bringing observers to Guantánamo itself, and describing the restriction on listening to the prisoners speak as being necessary to maintain "reasonable security," and to prevent the exposure of any sensitive information.

Critics, however, point out that observers were allowed to hear the prisoners' testimony during the review boards that took place under President Bush, both at Guantánamo and at Bagram in Afghanistan. David A. Schulz, a lawyer for a coalition of 14 media organisations, stated, "It's a significant new restriction on the level of transparency that has been allowed until now. You could argue that, because of the extraordinary nature of the situation, it's even more important that there be maximum transparency."

Furthermore, Daphne Eviatar, an attorney with Human Rights First, pointed out that "if the bulk of the evidence against the detainee is classified, then there won't be much to see and we're all in a position, once again, of being asked to trust the government that it's doing the right thing."

Abd-al Malik Wahab al-Rahabi, the prisoner whose PRB is on Tuesday, was, like Mahmoud al-Mujahid, also accused of being a bodyguard for Osama bin Laden by an unreliable witness. Many years ago, he told one of his lawyers that he had made false confessions, stating that he was "tortured by beatings" in Kandahar, that his thumb was broken by American interrogators, and that he was "threatened with being held underground and deprived of sunlight until he confessed."

The next PRB will be for Ghaleb Nasser (aka Ghaleb al-Bihani), another Yemeni, and a cook for forces supporting the Taliban who had his habeas corpus petition denied by a judge five years ago. His attorney, Pardiss Kebriaei of the Center for Constitutional Rights, told the AP that she is "hopeful he will be cleared for transfer, but also wary because of the hold up in sending Yemenis to their homeland."

As she stated, reiterating the point we have been making since the start of the PRBs was announced in summer, "For the process to be truly meaningful there needs to be much more transparency, they need to pick up the pace, and clearance has to mean transfer out. It does no one any good to add to the pile of people who are cleared and not transferred."