What does it take to get out of Guantanamo? Almost half the remaining detainees - 75 of the remaining 154 men - were led to believe that they would be heading home soon when, in January 2010, the high-level, inter-agency Guantanamo Review Task Force, appointed by President Barack Obama shortly after he took office the year before, approved them for release.
However, they are still held - in part because, until recently, Congress had raised obstacles to their release that President Obama was unwilling to overcome, even though he had the power to do so, and in part because the majority of them (55 men in total) are Yemenis, and the Obama administration has concerns about the security situation in Yemen.
After a plot hatched in Yemen, which involved a failed underwear bomb on a plane bound for the US on Christmas Day 2009, President Obama imposed a ban on releasing any Yemeni detainees, even though that was a policy of guilt by association.
In May 2013, in a major speech on national security issues, President Obama finally dropped his ban and promised to resume releasing detainees from Guantanamo. He was prompted by domestic and international criticism, which had, in turn, been prompted by a prison-wide hunger strike, undertaken by the detainees to raise awareness of their plight.
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In the two years and eight months before the president's promise, just five men were released from Guantanamo. Since the speech, twelve men have been freed, which is progress, but that number does not include any Yemenis.
The Yemeni 'threat'
Compounding the plight of the 55 Yemenis who are still held, despite being cleared for release by the task force, another Yemeni was cleared for release in January as a result of the deliberations of a Periodic Review Board (PRB). The PRBs were meant to be established soon after President Obama issued an executive order in March 2011, authorising the ongoing imprisonment without charge or trial of 48 detainees who were regarded by the task force as too dangerous to release, but who could not be prosecuted because there was insufficient evidence to make a case against them.
That was a troubling conclusion, as evidence that cannot be used in a court doesn't deserve to be regarded as evidence. However, President Obama sought to placate opponents of indefinite detention without charge or trial by promising periodic reviews of the men's cases to gauge whether they should continue to be regarded as a threat.
By the time the PRB process was finally established in 2013, it had been expanded to include 25 of the 36 men the task force initially recommended for prosecution. Those facing the PRBs are able to speak at length via video link to the board members, who convene in a room in Virginia, and are made up of representatives of the Departments of State, Defence, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff.
The Yemeni cleared for release by the first PRB was a man named Mahmoud al-Mujahid, who had testified from Guantanamo by video link in a six-hour session. Nevertheless, he has little cause for celebration, because all that has happened is that he has joined the list of 75 other men cleared for release but still held.
In theory, however, he is one step closer to being released, unlike the second man to receive a PRB, Abdel Malik al-Rahabi, whose review board took place on January 28. Al-Rahabi made a good case for his release, describing the central importance to him of his 13-year old daughter Ayesha, and his hopes of working and rebuilding his life after his release, but on March 5 the review board decided that, over 12 years after his arrival at Guantanamo, his ongoing imprisonment without charge or trial "remains necessary to protect against a continuing significant threat to the security of the United States."
Evidence of torture
The reasons given involved a central claim that al-Rahabi, who was seized crossing from Afghanistan to Pakistan in December 2001, was a bodyguard of Osama bin Laden, part of a group known as the "Dirty 30" by the US authorities because of their alleged role as bodyguards for the al-Qaeda leader.
However, there have always been serious problems with these claims. The allegations against al-Rahabi, are based on testimonies given by men who were tortured; there were at least six individuals, including Mohammed al-Qahtani, for whom a specific torture programme was instigated at Guantanamo in 2002, and a number of other men held in CIA "black sites". Another alleged witness, Yasim Basardah, was known as the most notorious liar at Guantanamo.
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Following al-Rahabi's PRB, the third review board, for another Yemeni, Ali Ahmad al-Razihi, took place on March 20. The 33-year-old al-Razihi told the board that "he wished to return to his hometown in Yemen for an arranged marriage and to help run his father's fruit and vegetable business".
However, although the military's unclassified summary of evidence noted that "throughout his detention [he] has expressed nonextremist aspirations for his life after transfer," the summary also noted that officials "lack sufficient information to assess whether his stated intentions are genuine".
In addition, it was stated that he "travelled in 1999 from Yemen to Afghanistan, where he almost certainly joined and trained with al-Qaeda", and "subsequently almost certainly provided logistical support at al-Qaeda guesthouses". The use of the phrase "almost certainly" does not, of course, provide any kind of confirmation that the claims are true. Moreover, although the authorities claim that, like Abdel Malik al-Rahabi, he was one of the "Dirty 30" and "possibly" a bin Laden bodyguard, the summary notes that the origin of this information is "detainee reporting of questionable credibility", and adds that "throughout his time at the Guantanamo Bay detention facility" al-Razihi "consistently has denied involvement with al-Qaeda or any other extremist group".
Specifically, the summary notes, "FBI and other interviews of Guantanamo detainees identified that [al-Razihi] served as a bodyguard for Bin Laden, although one of them later recanted the allegation". Al-Razihi's classified military file, released by WikiLeaks in 2011, identifies the detainee who recanted his statements as the tortured Mohammed al-Qahtani. Another alleged witness, who didn't recant his statements, and who "photo-identified detainee as a UBL bodyguard on three separate occasions", was Yasim Basardah, the notorious liar.
A decision in al-Razihi's PRB is not expected for many weeks, but hovering over it is the decision taken in the case of Abdel Malik al-Rahabi, which, while presented as an objective decision about him representing "a continuing significant threat" to the US, was in fact a decision based on extremely dubious material masquerading as evidence, used to justify the continued detention of a man, never charged, tried or held as a of war according to the Geneva Conventions, who has already been held for 12 years.
This whole sorry story calls out for action by the Obama administration to release all the detainees so far cleared for release, and also to speed up the PRB process, and to reflect on how long the continued imprisonment of men seized in wartime over 12 years ago is acceptable, especially with the anticipated drawdown of US troops from Afghanistan at the end of the year, which will destroy the rationale for the imprisonment of all but those accused of acts of terrorism and/or gross human rights abuses.
Andy Worthington is a freelance investigative journalist. He has been researching and writing about Guantanamo since 2006, and has worked with the United Nations, WikiLeaks, Reprieve and Cages. He is the co-founder of the Close Guantanamo campaign, and authored the book The Guantanamo Files.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.