There are 162 prisoners still held at Guantanamo. They fall into three categories: 84 were cleared for release in January 2010 by the high-level, inter-agency Guantanamo Review Task Force that US President Barack Obama established shortly after taking office in 2009, but they are still held because of obstruction by Congress and the president’s unwillingness to spend political capital overcoming those obstacles. Seven others are currently facing trials, and one other is serving a life sentence after a trial by military commission in 2008.
The remaining 71 prisoners are undergoing a painfully slow and uncertain review process, to ascertain whether they should continue to be held, or whether they should be released.
Delay in PRBs
These reviews – the Periodic Review Boards – were supposed to have been established in March 2011, when Obama issued an executive order authorising the on-going imprisonment without charge or trial of 48 prisoners, following recommendations made by the task force.
This was a profoundly troubling development, as the task force concluded that the 48 were “too dangerous to transfer but not feasible for prosecution”. Critics were appalled by the decision to carry on holding these men without charge or trial, and Obama only avoided relentless criticism by promising that they would receive periodic reviews, to ensure, as he stated in a speech in May 2009, that “any prolonged detention is carefully evaluated and justified”.
Shamefully, the PRBs were not established until July, when the Pentagon announced that 71 men would receive reviews – the men designated for on-going detention in March 2011 – who now number 46 men, because two have died – and 25 others, who were among 36 men recommended for prosecution by the task force in 2010.
These 25 men will not now face trials because, in two recent rulings, judges in the court of appeals in Washington DC threw out two of the only convictions secured in the military commissions, on the basis that the crimes of which the prisoners were convicted – including material support for terrorism and conspiracy – were not real war crimes, and had been invented by Congress. Because the majority of prisoners recommended for trials faced these charges, they too will face PRBs to see if they should still be held.
Six-hour secret testimony
On November 20, the first of the PRBs finally took place, when Mahmud al-Mujahid, a 33-year-old Yemeni, who has been at Guantanamo since January 2002, spent six hours trying to secure his freedom.
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Army Lt Col Todd Breasseale, a Pentagon spokesman, stated, “The detainee was allowed to speak, uncensored, except for when his counsel interrupted him,” but nothing is known of what al-Mujahid said, or how those listening to his testimony by video feed responded to it. The Pentagon’s PRB website explains that panels are “comprised of senior officials from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence”.
According to the Miami Herald, Breasseale explained that they “listened to the captive and then questioned him with the aid of two linguists via closed-circuit feed” from a secret location near Washington DC. He added that a transcript of part of the hearing would be released “soon”, but would “not necessarily contain the captive’s comments”.
Al-Mujahid’s attorney, David Remes, was with him during the hearing, but he stated only that his client’s objective “is to leave Guantanamo”, and that he would prefer “to go to a Western country but was amenable to going back to Yemen if that would cause him to be released earlier”.
No other source was able to comment, because journalists, independent legal experts and human rights observers were not allowed to see or hear anything that took place.
Alan Liotta, the Pentagon’s deputy director of detainee affairs, explained in a letter to Andrea Prasow of Human Rights Watch on November 4, that the DoD was “working to establish procedures for granting press access to certain unclassified portions of the PRB hearings”.
The Miami Herald noted that military sources said that Liotta’s boss, Paul Lewis, the Pentagon envoy for Guantanamo closure, who was appointed in October, “was surprised to discover”, during a visit to Guantanamo on November 5, that prison staff “had no plans to accommodate the media for the hearings”.
Under the PRBs’ predecessors, the Administrative Review Boards convened under President Bush, observers had been allowed to watch the unclassified portion of the proceedings, and this also happened in Afghanistan, in the Detainee Review Boards at Bagram. Alan Liotta was unable to explain why similar access was not available from the start of the PRB process.
The secrecy in the PRBs is unfortunate, because, among those seeking the closure of Guantanamo, hopes have been expressed that they will lead to the release of prisoners.
A way forward?
The secrecy in the PRBs is unfortunate, because, among those seeking the closure of Guantanamo, hopes have been expressed that they will lead to the release of prisoners. When the start of the review process was announced in July, Remes told Jason Leopold that he “commends the motivation behind giving these men a second look”, adding that the PRBs were “likely to be predisposed to approval to transfer because the idea here is to close down Guantanamo”. However, he also asked, “What is there that’s new to look at?” And called it, “surreal” that “nobody is going to have new information about what happened 11 or 12 years ago”.
In an email exchange, Clive Stafford Smith, the director of the legal action charity Reprieve, which represents 15 prisoners at Guantanamo, told me he thought the PRBs are “a genuine effort to clear people who should have been cleared long ago”, although he also noted that the process “suffers from many of the same flaws as earlier procedures”.
Those flaws may well include a predisposition to caution, of the kind that got the men recommended for trials, or for on-going detention without charge or trial, when there was never any reliable evidence to indicate that they posed a threat, or had ever done so, to the US.
In an email exchange, Pardiss Kebriaei, a staff attorney at the New York-based Center for Constitutional Rights, discussed her client, Ghaleb Al-Bihani, a Yemeni who is also scheduled to have a PRB. In January 2009, he had his habeas corpus petition turned down because he had been cooking for forces allied with the Taliban.
“The administration says that 12 years ago Ghaleb al-Bihani was an assistant cook for a group that no longer exists. He shouldn’t even be at Guantanamo, let alone have to undergo this review. But now that the PRB is going to review him, to what end? Will being cleared at the end of the process finally mean release after 12 years of detention without charge, or will Mr al-Bihani simply continue to languish at Guantanamo, like 84 others who were cleared years ago but remain detained?”
That is one of three key questions as the PRB process moves forward: Will the Pentagon drop its secrecy and allow independent scrutiny of the process? Will the process move forward as swiftly as possible, given that the men held are mostly approaching their 13th year in custody? And will it lead to the release of any prisoners, given that 84 other cleared prisoners are still held?
The answers are uncertain, but they do not look hopeful. As Pardiss Kebriaei also explained to me, “The date for his PRB hasn’t been set yet, despite [the fact] that he was notified in September”. She added, “To my knowledge, he’s one of only five men who’ve been notified so far and, separate from the hearing just held on November 20, only one other hearing has been scheduled, for January 28, 2014 or thereabouts.”
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 Cageprisoners. He is the co-founder of the Close Guantanamo campaign, and authored the book The Guantanamo Files.