Guantánamo Review Boards Clear Kuwaiti Prisoner Fawzi Al-Odah for Release, But Defend Ongoing Imprisonment of Fayiz Al-Kandari

31.7.14

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On July 14, the board members of the Periodic Review Boards at Guantánamo — consisting of 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 — approved the release of Fawzi al-Odah, one of the last two Kuwaiti prisoners in Guantánamo, but recommended that the other Kuwaiti, Fayiz al-Kandari, should continue to be held.

This is good news for Fawzi al-Odah, but the decision about Fayiz al-Kandari casts a dark cloud over the whole process. I have been covering the stories of both men for many years, and it remains as clear to me now as it always has been that neither man poses a threat to the US. Here at “Close Guantánamo,” we profiled both men back in February 2012, shortly after Tom Wilner and I, the co-founders of the “Close Guantánamo” campaign, had been in Kuwait trying to secure their release (see here, here and here).

The Periodic Review Boards were established last year, to review the cases of 46 Guantánamo prisoners specifically detained on the basis that they are allegedly too dangerous to release, even though insufficient evidence exists to put them on trial.

The decisions about the supposed danger posed by the men — despite the lack of evidence against them — were taken by the high-level, inter-agency Guantánamo Review Task Force that President Obama appointed to review the prisoners’ cases shortly after he took office in 2009, and when he implemented the task force’s recommendations in March 2011, in an executive order authorizing the specific imprisonment without charge or trial of these 46 men, he promised that there would be periodic reviews of their cases to establish whether or not they continued to be regarded as a threat.

This is the process that only belatedly began last November, after 25 other prisoners were added to the list of those eligible for PRBs. These 25 had initially been recommended for prosecution by the task force, but had been withdrawn from consideration for trials when two appeals court rulings, in October 2012 and January 2013, dealt a major blow to the credibility of the military commissions — the trial system chosen for the Guantánamo prisoners under President Bush, and continued under President Obama — by overturning two of the only convictions secured in the commissions’ lamentable post-9/11 history.

Since the Periodic Review Boards began, nine prisoners have had their cases reviewed. Decisions have not yet been taken in the cases of two of these men — Muhammad al-Shumrani and Muhammad al-Zahrani — but of the seven others, four, including Fawzi al-Odah, have now been recommended for release (see here and here and here), while three others, including Fayiz al-Kandari, have been recommended for ongoing imprisonment on the basis that “continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States” (see here and here).

Prior to the decision in al-Odah’s case, all of the men recommended for release were Yemenis, who have not been released because the entire US establishment is fearful about the security situation in Yemen. This is completely unacceptable, as it is more damaging to America’s reputation for justice to continue holding men cleared for release than to free them, but in al-Odah’s case the restrictions do not apply, and it is likely, therefore, that he will be freed soon.

In al-Odah’s case, the board concluded that “continued law of war detention … does not remain necessary to protect against a continuing significant threat to the security of the United States,” and added that, in making its determination, the board noted his “low level of training and lack of a leadership position in al-Qaeda or the Taliban” and his “personal commitment to participate fully in the Government of Kuwait’s rehabilitation program and comply with any security measures, as well as [his] extensive family support.”

The Board also found al-Odah’s “statements to be credible regarding his commitment not to support extremist groups or other groups that promote violence, and noted the positive changes in [his] behavior while in detention.” The board also “considered information provided by the Government of Kuwait that indicated its confidence in its legal authority to require and maintain [his] participation in a rehabilitation program and commitment to implement robust security measures.” This, the board noted, includes al-Odah’s “participation in a full rehabilitation program for at least one year of in-patient rehabilitation.”

In al-Kandari’s case, unfortunately, although the board found him “credible with respect to his desire to return to his family, which appears willing to help with his reintegration,” the board members also decided that he “almost certainly retains an extremist mindset and had close ties with high-level al-Qaeda leaders in the past,” even though there is no evidence for either claim. As I explained back in 2009 in a major profile of al-Kandari, his history is one of caring for others and engaging in charitable activities, and the allegations of his involvement with al-Qaeda simply do not stand up under scrutiny, as he arrived in Afghanistan in August 2001, and had no time to do any of the things of which he has been accused — which, absurdly, include a claim that, in a ridiculously short amount of time, he became a spiritual adviser to Osama bin Laden.

In attempting to justify their decision, the board considered that al-Kandari had a “susceptibility for recruitment” to terrorism “due to his connections to extremists and his residual anger at the US,” and also “noted a lack of history regarding the efficacy of the rehabilitation program Kuwait will implement for a detainee with his particular mindset.” What I find alarming about this conclusion is the suggestion that al-Kandari’s resentment at losing 12 years of his life in Guantánamo is somehow unacceptable, when it is surely understandable to be angry, and this, in itself, is a not the same thing as being so angry that you engage in terrorism when released — something that, I can confidently say, having heard so much about him and having met his large extended family, would never happen in his case.

The board added that it “appreciates the efforts of the Kuwaiti government and encourages the officials at the Al Salam Rehabilitation Center” in Kuwait, a facility funded by the Kuwaiti government solely for al-Odah and al-Kandari, to “continue to work with” al-Kandari, presumably through correspondence — unless visits to Guantánamo are on the cards.

His case will be reviewed in six months, and the board members expressed their hope that he would remain involved in the process.

Here at “Close Guantánamo,” we hope so too, but we also understand why Fayiz al-Kandari might be reflecting that there is no justice at Guantánamo. As his military defense lawyer Barry Wingard wrote back in In July 2009, in an op-ed for the Washington Post:

Each time I travel to Guantánamo Bay to visit Fayiz, his first question is, “Have you found justice for me today?” This leads to an awkward hesitation. “Unfortunately, Fayiz,” I tell him, “I have no justice today.”

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, the full military commissions list, and the chronological list of all Andy’s articles.

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9 Responses

  1. Andy Worthington says...

    When I posted the original version of this on Facebook yesterday, I wrote:

    If you haven’t yet joined us at “Close Guantanamo,” please do. Just an email is required to be counted as someone who wants to see Guantanamo closed, and all you’ll receive from us is 2 or 3 email updates every month: http://www.closeguantanamo.org/Join-Us
    We’re also on Twitter: https://twitter.com/closegitmo
    And our Facebook page is here: https://www.facebook.com/CloseGuantanamo

  2. Andy Worthington says...

    Aisha Noor wrote:

    Done. Shared

  3. Andy Worthington says...

    Thanks, Aisha. Much appreciated.

  4. Andy Worthington says...

    Thanks to everyone liking and sharing this. It’s important that those of us who are concerned about Guantanamo stay up to date on what’s happening, and the review boards are significant because they provide an opportunity, as in Fawzi’s case, for senior government officials to conclude that the alleged dangerousness of prisoners – four to date – has been overstated.
    On the other hand, the review boards also play a role in the US authorities seeking to justify the unjustifiable detention policies at Guantanamo, creating an illusion of fairness about the potential threat allegedly posed by the men that masks the more fundamental questions that should be asked – why these men have never been regarded as prisoners of war, and why preparations are not being made for the release of all of them (except the handful facing trials) as the US prepares to wind down its involvement in Afghanistan?
    This unfairness is highlighted when, as in Fayiz’s case, and on the cases of the two other men recommended for ongoing imprisonment, the review board concludes that that “continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States.”
    Also significant, of course, is the fact that none of the men recommended for release has actually been freed, making a mockery of the whole process. One way of addressing it is for Fawzi to be freed as soon as possible, but it remains unacceptable that the other three have not been freed because they’re Yemenis, and the entire US establishment refuses to approve the release of any Yemenis – the three cleared by the review boards, and 75 others cleared for release by Obama’s Guantanamo Review Task Force in January 2010 – because of their perceptions about the security situation in Yemen.

  5. Andy Worthington says...

    Malak Saib wrote:

    Allah make it easy for al kandari

  6. Andy Worthington says...

    Thank you, Malak, for your concern for Fayiz al-Kandari. I hope others will also think about his predicament.

  7. arcticredriver says...

    Thanks Andy!

    Andy, if you met his brothers, uncles and cousins, perhaps you could confirm or refute some speculation of mine?

    When I first started reading about Al Kandari and Abdul Kamel al Kandari, my google searches found other individuals named al Kandari.
    [1] There was at least one individual named al Kandari in Kuwait’s national legislature;
    [2] There was a pilot of a Kuwaiti jet fighter, named al Kandari, who disappeared in his jet over the Persian Gulf;
    [3] There was a hot-head, named al Kandari who, with a couple of other hot-heads, fired upon a squad of Marines on a training exercise on a Kuwaiti Island that had not been repopulated since the 1991 war.
    [4] And we know, from the OARDEC documents, that some elements of the US intelligence establishment believed that Osama bin Laden’s “spiritual advisor” was a guy named “Al Kandari”. We know that intelligence analysts believed both Fayiz al Kandari and Abdul Kamel al Kandari were that spiritual advisor.

    My speculation is that the Kuwaiti phone book has page after page of guys named al Kandari, and that there are fair too many of them to refer to them all as cousins of one another. Campbell and McDonald are commons names, in Scotland, correct? But when one guy named Campbell meets another guy named Campbell, I’ll bet he doesn’t refer to him as his cousin — except perhaps, in jest…

    Did you ask how closely related Fayiz al Kandari was to Abdul Kamel al Kandari? Did you learn whether the accusation the men were related to the hot-head who shot at US marines on the training exercise on Faylaka Island was closely related to either man?

    I think practically none of the Guantanamo intelligence analysts understood that Arabic and Afghan names weren’t like European-style names, that most people with an Arabic name have not inherited a European style surname from their father. Some things that look like surnames, (names that are disambiguators, based on individuals’ family tree) are actually disambiguators based on geography: all al-Libis are from Libya; all al-Masris are from Egypt; all al-Tunis are from Tunis. Do you know whether al-Kandari is another faux-surname, based on Geography?

    Do you think there is any reason to believe Osama bin Laden had any close “spiritual advisors”?

    Given that the name seems so common I would be very surprised if there were a cleric named al Kandari in OBL’s entourage if he weren’t a completely separate individual. To rise to being close to OBL implies he was in his entourage for years. Yet didn’t both al Kandaris we know about arrive in Afghanistan shortly before their capture?

    If we both live long enough for the classification on the secret portions of the Periodic Reviews to be made public I’ll bet you a beer that the notion that Fayiz al Kandari was OBL’s spiritual advisor played a part in the decision to continue to hold him.

    As to whether it makes Fayiz al Kandari a risk to the USA to resent losing a decade under very brutal conditions… I think it makes sense to compare his case to that of John McCain when he was a prisoner of the North Vietnamese.

    If I understand it correctly, the North Vietnamese did not accord any airmen they captured the protections of the Geneva Conventions. If I understand it correctly, their justification was that US warplanes routinely hit civilian targets, making the US airmen war criminals, not entitled to the protections of POW status.

    If that was the North Vietnamese justification, I think they made a mistake. If there were specific airmen they thought had deliberately targetted civilian structures, or had been recklessly casual when targetting military targets, hitting nearby civilian structures due to inexcusable carelessness, they should have first convened a “competent tribunal”. Then they should have tried them. They never should have tortured McCain, or any other flyers, even if their competent tribunal stripped them of POW status.

    What if the North Vietnamese said McCain was a “non-compliant” captive? If or when an American were held under circumstances as lacking in fairness as those the Guantanamo captives were held under no American would object to the captive Americans trying to undermine the efforts of their captors.

    I remember how shocked I was when I started to read the transcripts from the 2005 annual status reviews that followed the 2004 CSRTs. There were a number of transcripts where the officers explicitly spelled out that their orders were to recommend the continued detention of captives who they suspected had learned to resent the USA, during their years of brutal detention — even if they were convinced those individuals had been captured in error, and had been simple, innocent, civilian bystanders, when first captured.

  8. Andy Worthington says...

    I met many relatives of Fayiz al-Kandari, arcticredriver, but I wasn’t in a position to ask too many questions. However, the al-Kandaris are definitely a big family, and I don’t think it would be accurate to presume that what a cousin did would necessarily reflect on what other relatives did. The feeling I had was that the family was more like an entire neighborhood, so it would be more like blaming people on a certain street for what their neighbors did.
    As for the identification of Fayiz as a spiritual advisor to bin Laden, it’s clearly ridiculous, although the US thinks Fayiz had travelled to Afghanistan prior to his 2001 visit. Even so, I fail to see how a Kuwaiti teenager was supposed to get close to bin Laden. It really doesn’t seem even vaguely credible at all.
    Thanks also for letting me know that intelligence analysts believed both Fayiz al-Kandari and Abdul Kamel al-Kandari (a cousin, I believe) were the spiritual advisor. I hadn’t realized that, but it fits a pattern, of course, that you identify, whereby any allegation levelled at anyone called al-Kandari would be used against either man – or both men, to be more accurate.
    I actually believe that it is behavior in custody that is driving decisions about the dangerousness of the prisoners, just as it was in the review boards you mention in 2005. You can see it in the wording of the Periodic Review Boards’ decisions. Whereas Fawzi has become contrite and obedient, in the authorities’ eyes, Fayiz presumably hasn’t – and has long been regarded as a troublemaker with leadership potential, like Shaker Aamer, for example.
    It all seems to be a continuation of what Guantanamo has been from the beginning – a place where the prisoners have to be broken, and those who are not broken must be regarded as a threat. It’s despicable, and I hope we live to look back on it all and have the prison at Guantanamo Bay regarded as the absolutely vile monstrosity that it is.

  9. freedetainees.org – On Guantánamo, No News is Bad News says...

    […] Obama’s Guantánamo Review Task Force, and four others were recommended for release this year by Periodic Review Boards, established to review the cases of the majority of the men who were not cleared for release by the […]

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