End 22 Years Of Injustice

The Absurdity of Guantánamo: As U.S. Prepares to Release Ahmed Al-Darbi in Plea Deal, Less Significant Prisoners Have No Prospect of Release

Ahmed al-Darbi, in a photograph taken by representatives of the International Committee of the Red Cross, and made available to his family, who then approved it for public release.

By Andy Worthington, August 10, 2017

In the long and cruel history of Guantánamo, a major source of stress for the prisoners has been, from the beginning, the seemingly inexplicable release of prisoners who constituted some sort of a threat to the U.S., while completely insignificant prisoners have languished with no hope of release.

In the early days, this was because shrewd Afghan and Pakistani prisoners connected to the Taliban fooled their captors, who were too arrogant and dismissive of their allies in the region to seek advice before releasing men who later took up arms against them. Later, in the cases of some released Saudis, it came about because the House of Saud demanded the release of its nationals, and the U.S. bowed to its demands, and in other cases that we don’t even know about it may be prudent to consider that men who were turned into double agents at a secret facility within Guantánamo were released as part of their recruitment — although how often those double agents turned out to betray their former captors is unknown.

Under President Obama, an absurd point was reached in 2010, when, after Congress imposed onerous restrictions on the release of prisoners, the only men freed were those whose release had been ordered by a judge (as part of the short-lived success of the prisoners’ habeas petitions, before politicised appeals court judges shut down the whole process) or as a result of rulings or plea deals in their military commission trials. Just five men were freed in a nearly three-year period from 2010 to 2013 — with former child prisoner Omar Khadr, low level al-Qaeda assistant Ibrahim al-Qosi, and military trainer Noor Uthman Muhammed all released via plea deals — as President Obama sat on his hands, and refused to challenge Congress, even though a waiver in the legislation allowed him to bypass lawmakers if he wished.

Throughout this period, over eighty men in total whose release had been approved by a high-level, inter-agency review process (the Guantánamo Review Task Force) that President Obama established shortly after first taking office in 2009, languished with no prospect of release, and eventually the prisoners embarked on a prison-wide hunger strike to protest about what they correctly perceived as the unending injustice of Guantánamo, where, whatever decision had been taken in their cases, they were never released. One noticeable complaint at this time was made by Sufyian Barhoumi, an Algerian prisoner, who asked a judge to order the government to prosecute him for something — anything— so he might get to be released.

As a result of the hunger strike, and widespread international outrage about Guantánamo for the first time in his presidency, Barack Obama resumed releasing prisoners in the summer of 2013, ensuring that, by the end of his presidency, although he had failed to close Guantánamo as he promised on his second day in office in 2009, just 41 men were still heldfive approved for release (ironically including Sufyian Barhoumi), ten facing, or having faced trials, and 26 others whose ongoing imprisonment had been approved by Obama’s second review process, the Periodic Review Boards, a parole-type process that approved 38 men for release between 2014 and 2016 who had previously been described as having been "too dangerous to release."

Since taking office in January this year, Donald Trump has done very little at Guantánamo. His ridiculous plans to revive torture and bring new prisoners to Guantánamo have so far come to nothing, the Periodic Review Boards continue (although no one has been recommended for release since he took office), and the pre-trial hearings for the seven men facing military commissions, which began under Obama, are also ongoing, even though, by any objective measure, the commissions are a hopelessly broken system, in which only eight cases have concluded, and with most of those convictions being overturned on appeal.

In June, an eighth man was added to this roster, when the "high-value detainee" Hambali was charged — although Spencer Ackerman reported for the Daily Beast that a Trump official had told him anonymously that "charging Hambali was 'short-sighted' and 'indicative of a lack of understanding of the complications of U.S. detention policy,' particularly without a broader policy framework for the Hambali case," adding, "It’s kicking off a procedure that will take an indefinite period of time. This system doesn’t work."

Ahmed al-Darbi and his plea deal

Now, however, Donald Trump faces a problem he hadn’t anticipated, and a return to the tangible unfairness of years past, as the U.S. authorities take testimony from another prisoner who, according to the terms of a plea deal agreed in 2014, will, as a result, be repatriated to Saudi Arabia to serve the rest of his sentence there.

The prisoner in question is Ahmed al-Darbi, who, last week, gave a deposition in the case of Abd al-Rahim al-Nashiri, who is facing the death penalty for his alleged role in the bombing of the USS Cole in 2000, in which 17 U.S. sailors died. As Carol Rosenberg described it for the Miami Herald, al-Darbi admitted in his plea deal "to getting supplies and helping al-Qaida militants plot suicide bombings of ships in the Arabian Sea," adding, "In exchange for the plea, he is due to return to his native Saudi Arabia next year to serve out the remainder of an at-most 15-year prison sentence."

As Rosenberg also noted, "The Obama administration struck the testimony-for-release deal, and war court prosecutors say they are confident that Defense Secretary Jim Mattis will honor it." Not to honor the deal would be a dangerous precedent, and one which has never been attempted, even though the Bush administration maintained, outrageously, that it could continue to hold convicted Guantánamo prisoners after their sentences were served.

Air Force Col. Vance Spath, the judge in al-Nashiri’s case, also ruled that "the public would not be allowed to watch" as al-Darbi gave his deposition, to the annoyance of his defense attorney, Rick Kammen, who, as Rosenberg put it, "wanted Darbi to testify in open court."

Kammen said, "The tragedy of all of this is that the public won’t see as it unfolds," adding, as Rosenberg described it, that he "predicted that, at the pace of progress toward trial, the public might only get to read a transcript, or see portions of the video, 'if there’s a trial, which may be as far away as four or five years.'"

As Rosenberg noted, "Judge Spath has said in court he hopes to at least start jury selection in 2018," but it remains incontrovertible that "progress toward trial has been slow, in part because of a continuing dispute between defense and prosecution attorneys over access to evidence."

Last Monday, Judge Spath notified the lawyers in al-Nashiri’s case that "virtually any questions could be asked of Darbi in the closed deposition, which continues later this year with defense attorneys cross-examining him in a separate session." As Rosenberg explained, "at the trial phase, if Darbi is gone from Guantánamo," it will be the judge who will "decide which portions, if any, of the videotape can be shown to the jury."

She added that "Darbi’s time-capsule testimony is being taken across at least two months, and in two cases. He’ll do another deposition Aug. 14-18 in the non-capital war crimes case against an alleged al-Qaida military commander, Abd al Hadi al Iraqi." In contrast to al-Nashiri’s case, however, al-Hadi’s judge, Marine Col. Peter Rubin, "has agreed with defense attorneys to let the public watch."

Whilst all of the above is of interest to those concerned with the tortuous approach to justice in the military commissions, it ought to be clear to the Trump administration that the countdown to al-Darbi’s release back to Saudi Arabia — even though it is to be followed by continued imprisonment — will not reassure anyone that Trump’s stewardship of Guantánamo is even vaguely acceptable, 15 and a half years after the prison opened.

This is because five men approved for release by high-level government review processes under President Obama are still held, with no sign on Trump’s part that he has any intention whatsoever of releasing them, and many of the 26 men recommended for ongoing imprisonment by Periodic Review Boards can, rightly, point out that they are less significant than al-Darbi, and yet they are supposed to quietly remain at Guantánamo without charge or trial for the rest of their lives without making any complaint.

Is there any way on earth that this can be regarded as fair?