End 16 Years Of Injustice

No Escape from Guantánamo: An Update on the Periodic Review Boards

Omar al-Rammah, a "forever prisoner" at Guantánamo, who has been waiting 16 months for a decision to be taken about his status following his Periodic Review Board in February 2017.

By Andy Worthington, June 27, 2018

Regular Guantánamo-watchers will know how wretched it is that Donald Trump is in charge of the prison at Guantánamo Bay, because he appears to have no ability or willingness to understand that it is a legal, moral and ethical abomination, where most of the 40 men still held are imprisoned indefinitely without charge or trial, in defiance of all agreed laws and treaties, and a handful of others are facing trials in a broken trial system, the military commissions, that is not fit for purpose.

Under George W. Bush, a total of 532 prisoners were released from Guantánamo, and Barack Obama released another 196. Trump, to date, has released just one man, a Saudi repatriated for ongoing imprisonment, who was only released because of a plea deal he had agreed to in his military commission proceedings in 2014, and has shown no interest in releasing anyone else, even though five of the 40 men still held were approved for release by high-level review processes under President Obama. With only nine men facing trials, that also leaves 26 other men in that unjustifiable limbo of indefinite imprisonment without charge or trial.

The only mechanism that exists that theoretically could lead to the release of any of these men is the Periodic Review Board system, the second review process set up by President Obama. The first, the Guantánamo Review Task Force, assessed in 2009 whether prisoners should be freed or tried or whether they should continue to be held without charge or trial. 156 were recommended for release, and 36 for prosecution, and 48 for ongoing imprisonment without charge or trial, on the basis that they were regarded as too dangerous to release, but insufficient evidence existed to put them on trial.

This was a move on Obama’s part that, sadly, enshrined indefinite imprisonment without charge or trial as his own policy, not just one inherited from Bush, but he did follow it up with the establishment of the Periodic Review Boards, which functioned as a kind of parole system, whereby prisoners could be approved for release if they demonstrated to a panel of military and intelligence officials that they were contrite, and that they had plans for a constructive post-release life.

As a result of the PRBs, which ended up applying not just to the "forever prisoners," but also to many of those initially recommended for prosecution by the task force, as the legitimacy of the military commissions collapsed in a number of court rulings, 38 men were recommended for release by the PRBs, and 36 of them were freed before Obama left office (the other three men still held who were approved for release under Obama were actually approved for release by the 2009 task force).

The Periodic Review Boards under Trump

Since the start of Trump’s presidency, although the PRB process still exists, it has failed to deliver a single recommendation for release, and seems to be doing nothing more than simply going through the motions. It may be that this is because the remaining 26 prisoners in the PRB system are genuinely regarded as still constituting a threat to the U.S., or it could be because of the changing political context — from Obama, who was using the PRBs as a way to bypass Congressional obstacles to the release of prisoners, and to inch towards his promise to close the prison, to Trump, who wants to keep it open, and has no interest in releasing anyone.

Last year, I wrote about the first PRBs that had taken place under Trump — some file reviews, purely desk-based reviews every six months, and full reviews, where the prisoners get to go before a panel of officials (by video link) to make a case for their release. These were supposed to take place every three years, but under Obama they had tended to be every one or two years, with some even taking place at shorter notice. I wrote about these reviews in two articles last May, Under Trump, Periodic Review Boards Continue at Guantánamo, But At A Glacial Pace and Review Boards Approve Ongoing Imprisonment of Saifullah Paracha, Guantánamo’s Oldest Prisoner, and Two Others.

In the full reviews, three men had ended up having their ongoing imprisonment approved — alleged al-Qaeda facilitator Sharqawi Abdu Ali Al Hajj (ISN 1457), the Pakistani businessman Saifullah Paracha (ISN 1094), and Haroon al-Afghani (ISN 3148), a hapless Afghan who had only recently secured legal representation — while a fourth man, Omar Muhammad Ali al-Rammah (ISN 1017), a Yemeni seized in Georgia, against whom the US seemed to have no case, was awaiting a verdict after his review in February 2017.

Over a year since I last wrote about the PRBs, the board members have still not made a decision in al-Rammah’s case, as Jessica Schulberg recently explained in an article for the Huffington Post, stating, "The Pentagon declined to say why it is taking so long to make a decision in Al-Rammah’s case. But the lengthy delay indicates a disagreement between government officials over whether the Yemeni should be cleared for release."

Schulberg proceeded to explain that, although the panel members — "senior officials from the departments of Defense, Homeland Security, Justice and State; the Joint Staff; and the Office of the Director of National Intelligence" — must reach a unanimous decision, "even after they make a decision, their bosses — the heads of those agencies — can object to the decision and request a meeting to reexamine the case," and can also "request a review within 30 days of the PRB’s decision." They also "step in if the PRB can’t reach a consensus," as Sarah Higgins, a Pentagon spokeswoman, told Schulberg in an email. She added, "I can’t share at this time which scenario is holding up the final determination," and advised that the DoD remains "committed to the PRB process."

Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, which represents men still held at Guantánamo, told Schulberg that it was "unlikely that the PRB has failed to reach a consensus after 16 months of deliberating." As he put it, "My speculation is that some of these men have been approved for transfer by the board, there has then been an objection, and the principals committee has not met to resolve that objection — or has met but has not resolved it."

In the meantime, a new round of full reviews began in January, with the case of Khalid Qasim (ISN 242), a Yemeni, and a prominent artist at Guantánamo, who remains held because the authorities don’t, historically, like his attitude. The board approved his ongoing imprisonment in March, as they did for Abdul Rabbani Abu Rahmah aka Abdul Rahim Ghulam Rabbani (ISN 1460), a Pakistani whose case was reviewed in February, and Uthman Abd al-Rahim Muhammad Uthman (ISN 27), a Yemeni whose case was reviewed in April, with a decision delivered in May.

No decision has yet been taken in the case of Moath Hamza Ahmed Al-Alwi (ISN 28), a Yemeni, and another prominent artist, whose case was reviewed in March, and two more prisoners have recently had their cases reviewed: Abd Al-Salam Al-Hilah (ISN 1463), a Yemeni businessman, on June 19, and Haroon al-Afghani — again — on June 26. Human Rights First covered al-Hilah’s review, the only other media outlet to take any interest whatsoever in the PRBs.

Torture victim Mohammad Mani Ahmad al-Qahtani (ISN 63) is the next to be reviewed, on July 24, and, although no other full reviews are currently listed, it is reasonable to assume that the cases of the rest of the 26 men will be reviewed over the rest of the year and into 2019. Meanwhile, the file reviews also continue, with a big list on the PRB website, but as with the full reviews, it is hard to shake the notion that, under Trump, there is no reason for any panel to stick their neck out and recommend a prisoner for release.

When the boss says — or tweets — that he doesn’t think anyone should be released from Guantánamo, why would a panel of officials invite his scorn by approving the release of anyone tarred as one of "the worst of the worst," and who, it seems, very few people care about?

The PRBs, I fear, have become a sham — although I would dearly love to be proved wrong, as the sad truth is that amongst the 26 are men who have never had anything whatsoever to do with al-Qaeda or international terrorism, and whose continued imprisonment — because of a perceived bad attitude related to their long imprisonment without charge or trial — makes a mockery of justice.

As Wells Dixon also pointed out, "keeping the PRB system in place, even in its neutered form, gives the Trump administration a nominal defense when critics accuse it of indefinitely detaining prisoners without due process," as Jessica Schulberg described it.

Dixon said, "It is the only thing that the government can point to to show that there is any sort of review that is occurring at Guantánamo. It is what the government hangs its hat on to fight off habeas claims," like the one currently being reviewed in a U.S. court, which was brought on behalf of eleven prisoners. He added, "It is a meaningless process for all practical purposes."