Two years after President Obama signed an executive order establishing a parole board of sorts to review whether any of Guantanamo’s 48 “indefinite detainees” can be released, the panel is finally getting to work, with an eye towards reducing the population, Al Jazeera has learned.
In an email sent late Friday night to Guantanamo attorneys, retired Navy Rear Admiral Norton C. Joerg, who last year was appointed by former Secretary of Defense Leon Panetta to the position of director, periodic review secretariat, said, “a new Periodic Review Board (PRB) process will review the continued detention of certain detainees to assess whether continued law of war detention is necessary to protect against a continuing significant threat to the security of the United States.”
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Joerg’s announcement, under the subject line “General Notice to Habeas Counsel Regarding Commencement of the Periodic Review Board Process,” appears to be timed to coincide with a Senate Judiciary subcommittee hearing scheduled to take place Wednesday: “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” the first significant hearing on Guantanamo since 2009.
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Eighty-six of the 166 prisoners at Guantanamo have already been cleared for release. In May, President Obama announced a series of steps his administration intended to undertake to release the men, including lifting a moratorium on the transfer of prisoners to Yemen. The reviews of 71 other indefinite detention cases are another step towards emptying out Guantanamo.
Last month, the Defense Department released under the Freedom of Information Act (FOIA) the closely held list that for the first time identified the 71 prisoners who the administration determined cannot be prosecuted or released because evidence against them was either obtained through torture or they still pose a national security threat to the U.S. if repatriated to other countries.
Army Lt. Col. Todd Breasseale, a Pentagon spokesman, confirmed to Al Jazeera on Saturday that the Defense Department “has begun to notify the first detainees regarding the specifics of these boards, and how they can participate in the proceedings.”
The Periodic Review Board, which Joerg’s email said would be “composed of senior level officials from various U.S. government agencies,” was supposed to begin reviewing the indefinite prisoner cases last year. Although the Defense Department issued a directive in May 2012 advising government officials the periodic review board process, the board never met.
It appeared that Obama’s campaign promise of shutting down Guantanamo was no longer a priority for the president. Last December, the State Department reassigned the special envoy whose sole job was to work on closing the prison and repatriate the prisoners to other countries.
But in February, prisoners launched a hunger strike over what they said was the mishandling of their Qurans by military officials. While the inspection of the Qurans may have been the catalyst behind the hunger strike, the driving force that has sustained it since then is despair over more than a decade of indefinite detention and no hope of ever being released.
With dozens of starving prisoners being subjected to the brutal process of forced-feedings to keep them alive, Guantanamo was catapulted back into the national spotlight and, once again became a global story. Obama and congressional lawmakers were under renewed pressure to take action and start revisiting ways in which the prison could be permanently shut down. Since the start of Ramadan two weeks ago, 33 prisoners have been removed from the hunger strike list and were allowed to return to communal living and pray together during the month-long fast.
In a major speech on his counterterrorism policies in May, one that activist Medea Benjamin interrupted several times with calls for the president to use authority Congress granted him under the National Defense Authorization Act (NDAA) and begin releasing “cleared” prisoners, Obama acknowledged he had not made any progress on his promise to close Guantanamo. However, he blamed Congress for his inaction.
But, as human rights groups pointed out, Obama was also to blame. The organizations noted that the president’s executive order mandated that the periodic review board needed to start reviewing cases in March 2012.
National Security Council spokeswoman Caitlin Hayden acknowledged to Al Jazeera in May that the periodic review board process “has not moved forward quickly enough” but she said the administration would “work to fully implement” it.
Obama has now made good on that promise, which may provide comfort to the 73 prisoners who are still waging a hunger strike, more than half of whom are designated for force-feedings. His administration also recently named attorney Clifford Sloan to fill the special envoy vacancy at the State Department to start working on efforts to repatriate the 86 cleared prisoners. However, a liaison position at the Defense Department has not yet been filled, Breasseale told Al Jazeera.
“There have been ongoing talks with a number of countries for potential repatriation or resettlement of eligible detainees,” Breasseale said. “However, as with all diplomatic discussions, we simply do not discuss them until the transfer is complete – and only then, if the diplomatic agreement allows for such discussions.”
David Remes, a Washington, DC-based human rights attorney who represents more than a dozen Guantanamo prisoners, said he “commends the motivation behind giving these men a second look.”
“The question I have is what is there that’s new to look at?” Remes said in an interview, referring to evidence that might be used against the prisoners by the review panel to justify their continued imprisonment. “What’s surreal about this is that nobody is going to have new information about what happened 11 or 12 years ago.”
“We’ll do everything we can to argue that the detainee should be approved for transfer. The periodic review board is likely to be predisposed to approval to transfer because the idea here is to close down Guantanamo. But I just don’t understand how this is supposed to work. Because whatever process or structure you set up the government has everything in its files that it always had. The accusations will remain the same. They went to an al-Qaeda training camp. We’ve been through this over and over. What are we [the attorneys] going to do, send investigators out to the badlands of Afghanistan to find people to admit they sold a guy to the U.S. for bounties? What new information are we expected to come up with” to challenge the government?
Joerg’s email to the Guantanamo attorneys said the review board would not address whether the prisoners’ “law of war” detention is legal, “but rather makes discretionary determinations about the individual’s threat and the necessity of continued law of war detention.”
“Detainees receiving hearings will be notified by a Personal Representative assigned to assist them in the process,” Joerg wrote. “Counsel who have a prior relationship with detainees who will receive a hearing will be contacted in advance of the notification to the detainees.”
Moreover, according to Breasseale, citing partially from Obama’s executive order, prisoners are provided a personal representative” and “may also be assisted by private counsel, at no expense to the government.”
“The detainee is provided with an unclassified written summary of the factors and information the PRB will consider in evaluating whether the detainee is a continuing significant threat,” Breasseale said.
“The detainee’s personal representative and cleared private counsel receives the information provided.
The detainee is permitted to present oral and written statements to the PRB, to introduce relevant information, to answer questions posed by the PRB, and to call reasonably available witnesses who are willing to provide information relevant and material to the assessment of the detainee’s threat. The detainee is provided with a full review and hearing every three years, with semi-annual file reviews in between full reviews, focused on any new information and changed circumstances.”
Clive Stafford Smith, the director of UK-based human rights organization, Reprieve, which represent cleared Guantanamo prisoners and prisoners who have been designated for indefinite detention, said he believes the period review boards are “a sham of a process.”
“But I don’t suppose my clients would mind if they are released for all the wrong reasons,” he said.