For Abdul Latif Nasser, a Moroccan national held in the US military-run detention centre at Guantanamo Bay in Cuba, the difference between freedom and continued incarceration was just eight days.
Nasser was unanimously approved for release from Guantanamo and transfer back to his home country on July 11 last year by a periodic review board.
Between November 2013 and December 2016, this high-level, interagency review process analysed the cases of 64 men who were not facing trials and had not been recommended for release by the previous review process, the Guantanamo Review Task Force in 2009.
Of the 64, 38 detainees were recommended for release.
On January 18, Nasser’s lawyers unsuccessfully urged Judge Colleen Kollar-Kotelly of the District Court in Washington, DC, to order his release two days before President Barack Obama left office.
Under a law passed during the Obama presidency, the defence secretary is required to notify the US Congress 30 days in advance of the decision to release a detainee.
The US government told the court that security assurances sought from the Moroccan government and required for Nasser’s transfer to take place arrived eight days too late.
The Moroccan government only “finally responded affirmatively to the US government regarding those assurances through a diplomatic note transmitted on December 28, 2016”, it informed the court.
Since the Moroccan government responded just 22 days before the defence secretary left office, Ash Carter “did not make a final decision regarding the transfer”, the court was told, including whether the congressional requirements were met, and whether “the transfer was in the national security and policy interests of the United States”.
Carter left the decision to his successor, but it has meant that Nasser faces the prospect of spending the rest of his life in Guantanamo.
Clive Stafford Smith, one of his lawyers and the founder of Reprieve, told Al Jazeera it was “shameful” that Nasser was still being held, and described him as “a hostage to [President] Donald Trump’s purely political desire to act tough”.
‘No further releases from Gitmo’
Even before Trump became president, he made it clear that he had no interest in releasing any of the 41 Guantanamo detainees at the time of his inauguration.
On January 3, he had tweeted: “There should be no further releases from Gitmo,” giving, as his reason, that those still held “are extremely dangerous people and should not be allowed back on to the battlefield”.
Trump’s tweet was inaccurate on two counts: first, it undermined the entire purpose of the periodic review boards by suggesting that everyone still held was “extremely dangerous”, even though only three of the men still held have been through a trial process, and the rest have not had any of the allegations against them confirmed.
Second, his comment about prisoners returning to the battlefield alluded to contested reports issued twice a year by the director of national intelligence, which purport to reveal the numbers of prisoners who have taken up arms since their release.
Nevertheless, since taking office, Trump has been true to his word, and no one has been freed from the detention facility. Nasser remains trapped, as do four other men unanimously approved for release under Obama.
Two of these men – a Tunisian and a stateless man of Rohingya origin – were approved for release by the task force in 2009, but have refused all legal representation and have made it clear that they do not want any attention from the media.
The other two are Tawfiq al-Bihani, a Yemeni who was also approved for release by the task force in 2009, and Sufyian Barhoumi, an Algerian.
Repatriation of Yemenis, in particular, is blocked [by the Congress] as the US government regards the security situation in the Middle Eastern nation as too dangerous.
The Obama administration had issued a moratorium on releasing Yemenis from Guantanamo after a man inspired by a Yemeni leader tried to blow up a flight from Europe to the US on Christmas Day in 2009.
The moratorium was lifted in response to a prison-wide hunger strike in 2013, after which Yemeni detainees were sent to third countries, with 60 of them released between November 2014 and January 2017.
‘Stuck at Guantanamo forever’
Bihani is the last of the Yemenis approved for release still to be held, but his lawyer, George Clarke, based in Washington, DC, has been unable to discover why he was not released.
Clarke explained to Al Jazeera that he was supposed to be settled in Saudi Arabia with nine other men in April, but “he was pulled at the last minute”.
“No one will tell me what the security issue is,” he said.
Bihani was seized in Iran in early 2002 and was then handed over to the Afghan authorities and then to the US forces, who tortured him in “black sites” in Afghanistan before sending him to Guantanamo.
Clarke admitted that his client enrolled at a training camp but stressed that Bihani was “not an extremist”. Bihani’s brother Ghaleb, who was also sent to Guantanamo, was released and sent to a new home in Oman in Obama’s last week in office.
The situation faced by Sufyian Barhoumi, the last of the men still held despite being approved for release, is similar to that faced by Nasser. Like Nasser, Barhoumi was unanimously approved for release in August last year, but again Carter failed to notify Congress about his intended release, and a last-minute effort to persuade a judge to order his release also failed.
Barhoumi’s lawyer, Shane Kadidal, a senior staff lawyer at the Center for Constitutional Rights, expressed disappointment at his client’s continued incarceration.
He stressed that the US government should have no concerns about repatriating him as 15 men sent back to Algeria have been “living peaceful lives under the close watch of the state”.
Kadidal added that the prisoners are “reporting that it is lonelier and there aren’t enough people to get a good soccer match going”.
For the men still held despite being approved for release, the loneliness must be particularly bitter as they contemplate the possibility that they will be stuck at Guantanamo forever unless someone in the Trump administration pays attention to their plight.