Last week, I published the first of three new articles about the Periodic Review Boards at Guantánamo, looking at the hearing for a Yemeni prisoner, Ali Ahmad al-Razihi, who had the opportunity to ask for his freedom on March 20.
Ali is one of 71 prisoners — out of the 154 men still held — who were either designated for ongoing imprisonment without charge or trial in January 2010 by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in 2009 (46 men in total), or were recommended for prosecution (25 others).
The 46 had their ongoing imprisonment without charge or trial approved by President Obama in an executive order issued in March 2011, on the alarming basis that they were allegedly too dangerous to release, even though insufficient evidence existed to put them on trial. The president tried to sweeten this unacceptable endorsement of indefinite detention by promising that the men would receive periodic reviews of their cases, but the first of these did not take place until last October.
By this time the 46 had been joined by 25 others, initially recommended for trial by military commission. These men’s intended prosecutions had unravelled when appeals court judges dealt a massive blow to the legitimacy of the commissions in October 2012 and January 2013 by dismissing two convictions, on the basis that the war crimes for which the men had been convicted were not internationally recognized, and had been invented by Congress.
Since the PRBs started last November, just five men — all Yemenis — have had their cases reviewed, by representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff, who meet at an office in Virginia and hear testimony by, or on behalf of the prisoners by video link from Guantánamo.
The first man, Mahmoud al-Mujahid, had his release recommended in January, which, theoretically, was reassuring, although disgracefully it hasn’t led to his release. Instead, he merely joined a list of 75 other Yemenis who were approved for release by the Guantánamo Review Task Force in January 2010, but are still held — apparently indefinitely — because of concerns about the security situation in Yemen.
A second man, Abd al-Malik Wahab al-Rahabi, had his PRB on January 28, although in his case the board decided that his ongoing imprisonment “remains necessary to protect against a continuing significant threat to the security of the United States,” even though the allegations against him — including a claim that he had been a bodyguard for Osama bin Laden — were generally untrustworthy, produced by other prisoners who had been tortured, or were known to be unreliable.
The PRB for Ali Ahmad al-Razihi, which I wrote about last week, in the first of three articles providing updates about the PRBs, took place on March 20, and almost as soon as I had published my article I had to provide an update, because the board recommended him for release, as with Mahmoud al-Mujahid, and with the same problems — although cleared for release, he too only joins a list of Yemenis cleared for release but still held, now numbering 57 men.
The PRB for Ghaleb al-Bihani
The fourth PRB, on April 8, was for Ghaleb al-Bihani, a 34-year old whose case first came to prominence over five years ago, in January 2009, when his habeas corpus petition was turned down by Judge Richard Leon in the District Court in Washington D.C. Al-Bihani had been in Afghanistan at the time of the US-led invasion in October 2001, but only as a cook working “in the kitchen of a pro-Taliban Arab militia, the 55th Arab Brigade, whose ranks included al-Qaida members,” as Carol Rosenberg described it in the Miami Herald.
Notoriously, as I explained in an article at the time, “How Cooking For The Taliban Gets You Life In Guantánamo,” Judge Leon refused to grant al-Bihani’s habeas petition because, as he explained in his ruling, “Faithfully serving in an al-Qaida affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient [for continued detention]. After all, as Napoleon himself was fond of pointing out, ‘An army marches on its stomach.’”
Al-Bihani appealed, but was unsuccessful — twice — in the court of appeals, and in April 2011 the Supreme Court refused to hear his case. As his lawyers at the New York-based Center for Constitutional Rights described it, “As a result, an alleged kitchen aide, who was never accused of having raised arms against U.S. or allied forces, has lost  years of his life at Guantanamo and continues to be held indefinitely.”
In April 2011, details of al-Bihani’s ill-health became public knowledge, when WikiLeaks released classified military files on the majority of the Guantánamo prisoners, and he was described as being “on a list of high risk detainees from a health perspective.” As CCR described it, “His ailments include Type 2 Diabetes, asthma, chronic migraine headaches, chronic neck and lower back pain, depression, and anxiety. His blood sugar level fluctuates dangerously, rising as high as 700.”
Despite this, he has tried to remain positive abut his future. As CCR recently explained in another profile of his case:
Despite dealing with serious health problems and the emotional toll of his 12-year, indefinite detention, Mr. Al-Bihani has tried to make the best of his circumstances. He has endeavored to educate himself and learn skills to prepare for life after Guantánamo.
He is an avid reader, requesting dozens of books over the years. He has also been learning English and Spanish, developing his GED proficiency, educating himself about his diabetes, and trying to cope with his anxiety and depression through exercise, including yoga.
Mr. Al-Bihani has talked for years of his hopes for a new life, ideally in a new country. He hopes to become a father and start a family of his own, pursue his education and a career, and care for his health.
In contrast, the US authorities still maintain that al-Bihani is a threat. In an unclassified summary for his PRB, he is described as “almost certainly” a member of al-Qa’ida,” with “extensive knowledge of al-Qa’ida and Taliban leadership and operational procedures,” which “suggests he actively supported both groups,” although it was conceded that “he probably did not hold a leadership position in either.”
This is clearly an attempt to exaggerate the importance of a cook, and is reinforced by references to his alleged “associations with at-large extremists,” which turns out to be a reference primarily to his brothers. Six of them also traveled to Afghanistan for jihad (and one, cleared for release, is also at Guantánamo), and, according to the government’s unsubstantiated claims, “at least one … is a member of al-Qa’ida in the Arabian Peninsula.” The US authorities allege that, as a result, some or all of his brothers would “almost certainly would induce [al-Bihani] to reengage in extremist activities if he were repatriated to Yemen.”
This is not necessarily true, of course, although, in response, al-Bihani has long expressed his desire to be released in another country. As the authorities described it, since 2010 he “has expressed a fear of repatriation to the Middle East, stating that he no longer wishes to fight and would prefer to be transferred to Europe to establish a life away from jihad.” Nevertheless, the authorities refuse to take this at face value, explaining that, because of what is perceived as al-Bihani’s “longstanding tendency to provide conflicting statements about his own involvement in terrorism,” this “does not allow for an assessment with confidence about whether his stated intent to renounce jihad is credible.”
The authorities also note that he “has been a problematic detainee throughout his tenure at the Guantánamo Bay detention facility, having committed several significant personal disciplinary infractions and incited or participated in mass protests.”
Despite this analysis, al-Bihani was robustly defended at his PRB on April 8 by two people representing him — firstly, the personal representative appointed to represent him, an unnamed US military official, who was evidently so impressed by his desire to rebuild his life in peace that he opened his statement by saying that he “does not meet the standard for ‘continuing significant threat to the security of the United States'”; and secondly, his civilian lawyer, Pardiss Kebriaei of CCR, who expanded on the details provided by CCR above — in particular, his thirst for knowledge and his desire for a second chance.
I’m posting below both of these statements, which I believe provide a compelling case for al-Bihani’s release, although it remains to be seen, of course, if the board is prepared to agree with that assessment. Sadly, al-Bihani’s own words are not included, as the prisoners themselves remain censored, continuing the revolting tradition at Guantánamo of the authorities silencing the prisoners as much as possible, and thereby reinforcing their tired myths about the threat that insignificant prisoners like Ghaleb al-Bihani pose.
I hope you find the statements useful, and that you share this information if you do. A decision about al-Bihani is expected within the next few weeks, and, whether he is approved for release or not, the Periodic Review Boards remain a poor substitute for justice, either approving the ongoing imprisonment of people who are not a threat, or toothlessly recommending their release.
Bottom Line Up Front: Detainee does not meet the standard for “continuing significant threat to the security of the United States.”
Ladies and gentlemen of the Board, good morning. I am the Personal Representative for Ghaleb Nasser Al-Bihani, ISN number 128. In our submission, we have provided you with information that demonstrates that Mr. Al-Bihani should not be considered a continuing significant threat to the security of the United States.
Looking at the factors listed in the DTM 12-005 for assessing whether a detainee meets this standard, they can be grouped into three general categories: factors that go to whether a detainee has the capacity to be a significant and continuing threat to the security of the United States, whether he has the motive, and whether he will have the opportunity. In the vulnerability assessment methodologies with which I am familiar, if any of the three is absent or sufficiently low, then a threat is considered to be negligible.
Over the past 6 months, I have worked closely with Mr. Al-Bihani. I believe that he currently has neither the motive nor the capability to be a significant threat to U.S. National Security, and that he will not become one after his transfer. I say this as both a warfighter and as someone who has years of experience performing vulnerability assessments.
Starting with motive, Mr. Al-Bihani’s wish is, ideally, to be transferred to a third country where he can build a new and independent life. Camp records indicate that he has expressed this desire repeatedly over the past several years, since 2009. While the compendium for Mr. Al-Bihani implies that he may have ill intentions toward the U.S. when it states that he has been a “… problematic detainee throughout his tenure …,” camp records instead show that there have been only isolated and relatively minor incidents since 2009. He and his Private Counsel will speak more during their statements about his motives and his efforts to prepare for a better future. Our medical expert witness will address in her testimony [not included in the documents made available to the public] how Mr. Al-Bihani’s health problems can affect behavior.
In terms of capability, Mr. Al-Bihani does not have skills that would present a “significant” threat to U.S. National Security. Mr. Al-Bihani did not hold a leadership position with AI Qaeda or the Taliban — he didn’t even fight with them. He was not involved in specific attacks. Twelve years ago, he was an assistant cook in one of the groups that fought against the Northern Alliance, prior to U.S. combat operations, and then surrendered. The compendium itself states that he “… probably did not hold a leadership position in either [Al Qaeda or the Taliban].” And while his compendium lists various training, even if he had received every bit of the training listed, it would be equivalent to that provided to a Private in the U.S. Army — by himself, not a significant threat to a nation’s security.
In terms of opportunity, any concerns the Board may have about his environment after release can be mitigated. Again, if given a choice, Mr. Al-Bihani wants to go to a third country to build an independent life. Wherever he is transferred, he is willing to agree to appropriate security measures, and he is willing to participate in a rehabilitation program. As you will hear, he will also have the support and positive influence of his relative, and NGO support, to help ensure his successful reintegration.
Based on these factors, the U.S. has insufficient reason to believe that Mr. Al- Bihani has the motive or capability to be a significant continuing threat to U.S. National Security — or that any concerns about potential opportunity cannot be addressed. In closing, ladies and gentlemen, Ghaleb Nasser Al-Bihani does not meet the standard to be considered a continuing significant threat to the security of the United States.
Good morning. My name is Pardiss Kebriaei and I am the Private Counsel for Ghaleb Nasser Al-Bihani. Thank you for the opportunity to assist Mr. Al-Bihani in this review process.
I have represented Guantánamo detainees since 2007, including men who have been resettled in third countries and repatriated to Yemen. I have represented Mr. Al-Bihani since early 2011. I have had over two dozen meetings and phone calls with him since then, for a total of over 100 hours of conversation.
I began representing Mr. Al-Bihani after the close of his habeas case, so most of those hours have been spent discussing the here and now, and the future. I would like to share two main observations of Mr. Al-Bihani based on our conversations and interactions.
The first is that Mr. Al-Bihani has been talking about his wish for a new start in a third country for years. From our first phone call in April 2011, he spoke about wanting resettlement. He has continued to express this desire in virtually every conversation we have had since then, asking me about possibilities from Qatar, to Spain, to Costa Rica, to Uruguay. As he will tell you, he will accept transfer to any country the government determines is appropriate, including Yemen or Saudi Arabia. But if he had a choice, he would be sent to a third country. This is not because he thinks a third country is the fastest route for release, although certainly, he wants that route. It is not because he thinks this is what the Board wants to hear, because he has been saying for years that he wants resettlement. He will tell you more about his motivations, but what he has expressed to me continuously is his desire for a new beginning. A break from what has come before. A real chance to build a better life in an environment where there is stability, economic and educational opportunity, and calm. I believe that he wants these things.
The second is that I have observed Mr. Al-Bihani try hard to prepare himself for the life he wants to build. We have submitted to the Board a long list of books he has requested over the years. He has asked for Arabic-English dictionaries, Spanish language books, GED books, and DVDs on Latin America. He has asked for the latest research on diabetes, for yoga magazines, and self-help books. He has taken pages of notes on his readings. He has worked with his doctors to make various medical requests. He has come to every meeting we have scheduled over the past three years to work with me. He came to every meeting his Personal Representative and I scheduled over the past six months to prepare for this review, and said he was hopeful about it. Two weeks ago, he sat in a three-hour meeting pushing through a migraine headache to work on the statement that he is going to read to you. He began these efforts years ago, before anyone was checking. And he has tried to persevere in spite of his chronic health problems, which have at times been debilitating.
Wherever Mr. Al-Bihani is transferred, my organization will help support his rehabilitation and reintegration. For several clients who were resettled and repatriated by the Administration in 2009 and 2010, we worked with the State Department and host governments on transition plans for clients; we visited clients multiple times after release; we served as an ongoing point of contact for local authorities; we provided financial assistance and referrals for needs ranging from live-in interpreters to mental health care; and we partnered with other NGOs and organizations to help address other needs. We were a trusted and experienced resource in facilitating a successful transition for these clients, who are now rebuilding their lives. We would offer the same assistance for Mr. Al-Bihani.
We are still in contact with a client who was approved for transfer and resettled in a European country in 2009. The government’s assessment of him was not djssimilar to some of the assertions about Mr. Al-Bihani. Like dozens of resettled men, he went to a country where he had never been, where support had to be provided, and it was. It is five years later. He is fluent in the language of that country and working as an interpreter, he got married a couple of years ago, and he just had his first child. The United States successfully transferred him, as it has many others, and it can do so again with Mr. Al- Bihani. He is his own person and he should be evaluated on his own merits.
I will now turn it over to Mr. Al-Bihani to speak directly to you about his efforts and intentions.
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
Thanks to everyone who has been liking and sharing this article. I seem to have been following Ghaleb al-Bihani’s story for such a long time, particularly, as I mention in the article, since he had his habeas corpus petition turned down by a US judge in January 2009 because he had worked as a cook in Afghanistan: http://www.andyworthington.co.uk/2009/01/29/how-cooking-for-the-taliban-gets-you-life-in-guantanamo/
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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