End 17 Years Of Injustice

No Escape from Guantánamo: Former Child Prisoner Boycotts the Broken Periodic Review Board Process, Describes It As “Hopeless”

Former child prisoner Hassan bin Attash, in a photo from Guantánamo included in his classified military files released by WikiLeaks in 2011.

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By Andy Worthington, October 8, 2019

For the 40 men still held in the U.S. prison at Guantánamo Bay, the wheels of justice have, fundamentally, ground to a halt under Donald Trump.

It’s now nearly ten years since a high-level government review process established by President Obama — the Guantánamo Review Task Force — issued its recommendations about what to do with the prisoners inherited from George W. Bush. The task force recommended that 156 men should be released, that 36 men should be prosecuted, and that 48 others should continue to be held without charge or trial — on the basis that they were regarded as "too dangerous to transfer but not feasible for prosecution" (a self-evidently dubious designation, as it accepted that there were fundamental problems with the so-called evidence used to establish these men’s guilt).

Throughout the rest of his presidency, Obama managed to release all but three of the 156 men that the task force recommended for release, but an evolving crisis in the military commission trial system (which basically involved convictions being overturned because the war crimes for which prisoners had been prosecuted were not internationally recognized war crimes, but had been invented by Congress), meant that half of those originally deemed eligible for prosecution were, instead, lumped in with the 48 men recommended for ongoing imprisonment without charge or trial.

In March 2011, Obama issued an executive order personally authorizing the ongoing imprisonment without charge or trial of the 48 men regarded as "too dangerous to transfer" (or rather, 47, because one man had, in the meantime, died at the prison), but, recognizing that human rights advocates and attentive lawyers would have a problem with prisoners being imprisoned indefinitely without charge or trial, he also authorized periodic reviews of their cases to ascertain whether or not they were still regarded as too great a threat to be released.

In all, 64 men were deemed eligible for these reviews, and when the system — the Periodic Review Boards, a parole-type process requiring the men not to discuss their innocence or guilt, but to show contrition, and to propose viable plans for a peaceful post-Guantánamo life — finally began in November 2013, it led, over the last three years of Obama’s presidency, to 38 of the 64 men being recommended for release, with all but two of the men transferred out of the prison before Trump took office.

For the 26 others, however — accurately dubbed "forever prisoners" by the mainstream media — the Periodic Review Boards under Trump have become a zombie process, leading to no new recommendations for release, as is to be expected under a president who, even before he took office, tweeted, "There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield."

It’s ten months since I last wrote about the Periodic Review Boards, in an article entitled, Guantánamo’s Periodic Review Boards: The Escape Route Shut Down by Donald Trump, following up on a previous article in June 2018, No Escape from Guantánamo: An Update on the Periodic Review Boards. I also wrote about the PRBs in May 2017, in two articles, 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, establishing, in all these articles, how the continued existence of the PRBs allows the Trump administration to pretend that meaningful review of indefinite imprisonment without charge or trial still exists, when the reality is that it is a sham.

In the last ten months, the PRBs have been almost entirely ignored by the mainstream media and by NGOs, with only Human Rights First regularly sending observers to watch the unclassified portions of the proceedings at a secure military facility in Virginia, where, via a video link to Guantánamo, the prisoners can present their case for why they should be released.,

Under Obama, most of the prisoners took part in the process, accompanied by their lawyers and by the personal representatives from the U.S. military who are assigned to help them explain why they should be recommended for release. Increasingly, however, the prisoners have stopped turning up, as, in solidarity, have their lawyers, leaving just the personal representatives left to talk to the panel members. Under Obama, a no-show by the prisoners meant that they would not be recommended for release, and this remains true under Trump, with the result that, although the boxes can be ticked to show that the reviews are ongoing, they are now nothing more than a charade.

Former child prisoner Hassan bin Attash

Below, I will briefly run through the cases heard in the last ten months, but I’d like to begin by focussing on the most recent review, in the case of Saudi citizen Hassan bin Attash. The younger brother of Walid bin Attash, one of five Guantánamo prisoners facing a trial for their alleged involvement in the 9/11 attacks, Hassan bin Attash was seized in a house raid in Pakistan on September 11, 2002 with another of the five, Ramzi bin al-Shibh, and was then sent for torture in Jordan, and in other "black sites" run by the CIA, before arriving at Guantánamo in September 2004, where he has been held ever since.

Most shockingly, bin Attash was just 16 or 17 years old when he was seized, and has therefore spent over half of his life in U.S. custody (or in proxy U.S. custody) without charge or trial. In addition, like almost all of the 23 or so juveniles held at Guantánamo, he was never treated as a juvenile, held separately from the adult prisoners, and subjected to rehabilitation rather than punishment, even though those are the requirements of the Optional Protocol to the U.N. Convention on the Rights of the Child (on the involvement of children in armed conflict,) to which the United States has been a signatory since January 23, 2003. According to the Optional Protocol, juvenile prisoners — those under the age of 18 when their alleged crimes took place — "require special protection." The Optional Protocol specifically recognizes "the special needs of those children who are particularly vulnerable to recruitment or use in hostilities," and requires its signatories to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict."

Hassan bin Attash’s latest review took place on September 23, 2019, although, as Human Rights First explained, it was "yet another [PRB] hearing that ended as soon as it began," lasting "all of two minutes, with neither bin Attash nor his personal lawyer in attendance." In a statement to the board, David Remes, his attorney since 2005, stated that "Hassan continues to refuse to participate in the PRB process because he believes, understandably, that participation is pointless."

In addition, his personal representative noted that he "has refused all requests to attend scheduled meetings" — 18 in total — and has also "never replied to written correspondence," a far cry from, for example, his engagement with the process under President Obama.

Prisoners boycott the PRBs

As noted briefly above, bin Attash’s refusal to engage with Donald Trump’s debased version of the PRBs has been echoed throughout all of the cases heard over the last ten months, even though they are the first full reviews to take place since 2016 (the PRBs administratively review prisoners’ cases every six months, but the full reviews every three years are the only occasions in which the prisoners can present their case to the panel members via video link). Below I run briefly through their cases, providing links to their 2016 reviews for those of you who want to know more about their stories, and to appreciate the disillusionment that has settled in since Donald Trump took office.

Last December, Sanad al-Kazimi, a 48-year old Yemeni citizen, who, like bin Attash, was tortured in Jordan and CIA "black sites" before his arrival at Guantánamo in September 2004, boycotted his PRB, and, in January this year, Said Bakush, an Algerian about whom the U.S. authorities are shockingly ignorant, also "refused to appear at the hearing or cooperate with his government-appointed personal representative."

In February, Sharqawi al-Hajj, a 44-year old Yemeni also held in Jordan and in CIA “black sites,” and brought to Guantánamo in September 2004, also refused to participate in his PRB, and his despair is such that he recently attempted to commit suicide whilst on a phone call with his lawyers.

In March, Human Rights First attended the hearing for Suhayl al-Sharabi, a 42-year-old Yemeni national, noting that "Al Sharabi and his private counsel refused to attend the hearing, leaving only Al Shari’s U.S. government-appointed personal representative to appear before the Board. The hearing lasted less than four minutes."

On May 21, two more reviews took place, for Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi (aka Abu Faraj al Libi), a 48-year-old Libyan citizen, and Mohd Farik bin Amin (aka Zubair), a 44-year-old Malaysian citizen. Again, neither man attended the hearing, although it was noted that "Bin Amin’s personal representatives said the detainee’s private counsel instructed him to refrain from meeting with his personal representatives so they could focus instead on his habeas case in U.S. federal court. [Al-Uzaybi’s] personal representatives provided even less detail, stating only that he had refused three meetings since his last file review in 2018. Both hearings lasted less than five minutes."

In June, Mohammed Bashir Bin Lap (aka Lillie), a 42-year-old Malaysian citizen, also refused to attend his PRB, and he was followed in July by Mohammed Abdul Malik Bajabu, a 45-year-old Kenyan citizen who "declined to attend."

All of the above led to decisions to continue holding the prisoners in question because of the assessment that “continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States,” making 23 such decisions, in the PRB’s full review process, since Trump took office.

Just three cases are currently outstanding — those of Hassan bin Attash, and also of Abdullah al-Sharbi (aka Ghassan al-Sharbi), a Saudi whose review took place in August, and Pakistani citizen Mohammed Ahmed Rabbani, whose review took place the week before bin Attash’s.

Al-Sharbi also refused to attend his hearing, with his personal representative noting that he "met with me on five (5) separate occasions since February 2019, but has refused all meetings since (May 14th, May 22nd, June 12th)," and Rabbani also refused to attend, with his personal representative noting that Rabbani, astutely, "does not feel that the current political situation will allow any detainees to depart GTMO," and, as a result, he "has declined to participate in [the] PRB process." The representative added that he "has refused to meet with the Personal Representatives for the last 41 scheduled meetings."

Nearly 18 years since the prison at Guantánamo Bay opened, it is absolutely unacceptable that the only mechanism to review the cases of prisoners who, otherwise, will be imprisoned for the rest of their lives without charge or trial, has been so comprehensively debased by Donald Trump that the prisoners themselves have given up on it offering them any opportunity to demonstrate why they should be released.

As we approach the 18th anniversary of the opening of Guantánamo (on January 11, 2020), and the run-up to the next presidential election begins in earnest, it is almost certain that none of the candidates will discuss Guantánamo, but that will be a damning omission, as all of the men at Guantánamo have been shamefully abandoned by the law, and by the values that America claims to hold dear — not just the 26 "forever prisoners," who have decided to boycott a shamefully broken review process, but also the five men approved for release by high-level government review processes under Obama, who Donald Trump has no interest in releasing, and the nine others caught up in an equally broken and unjust process, the military commissions.

If the candidates won’t listen, the people — that small number of principled people who still care about the injustice of Guantánamo — need to make their voices heard to remind the world that Guantánamo’s continued existence is as fundamentally unfair as it has always been, and that the prison must be shut down, and those held either charged in a viable forum (in federal courts on the U.S. mainland) or released. No other course of action will finally deal with this terrible and enduring stain on the U.S.’s claim to be a nation that respects the rule of law, when, in fact, it behaves like a dictatorship, locking men up forever and throwing away the key.