Two More Guantánamo Prisoners, Including Hambali, Recommended for Ongoing Imprisonment by Review Boards

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The Periodic Review Boards at Guantánamo, which have been reviewing the cases of all the men still held who are not approved for release or facing trials (currently, exactly half of the 60 men still held), have recently made public their decisions in two of the five remaining cases for which decisions had not already been taken. The review boards, which began in November 2013, consist 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,  and are similar to parole boards, assessing whether prisoners show contrition for their alleged crimes, whether they can demonstrate that they do not hold any ill-will towards the US, and whether they can establish a credible scenario for a peaceful life after Guantánamo.

The decisions — to approve the ongoing imprisonment of two men, Guleed Hassan Ahmed and Hambali — mean that, of the 64 cases considered, 34 have ended with recommendations for release (and 21 of those men have been freed), while 27 have led to recommendations that the men in question should continue to be imprisoned without charge or trial — but with regular reviews of their cases continuing to take place, for which the men and their lawyers can continue to provide information that they think will help to secure a recommendation for the release. For further information, see my definitive Periodic Review Board list on the Close Guantánamo website.

This is a success rate for the prisoners of 56%, although there is, it should be noted, a distinct difference in the results of the PRBs based on the two types of prisoners put forward for the reviews.

41 of the 64 men who went before the PRBs had been described by the previous review process, 2009’s Guantánamo Review Task Force, as being “too dangerous to release.” This was clearly an example of unacceptable caution on the part of the task force, as 28 of these men have now been approved for release. Just eleven have had their ongoing imprisonment upheld, and two others are awaiting decisions. The success rate for the “too dangerous to release” prisoners is therefore 72%.

The other 23 men were recommended for prosecution by the task force, until the basis for prosecution largely collapsed under judicial scrutiny in 2012 and 2013, when appeals court judges correct dismissed some of the handful of convictions secured in Guantánamo’s troubled military commissions trial system, on the basis that the war crimes in question — primarily, providing material support for terrorism — had been invented by Congress and were not legitimate.

Of these 23 men, just six have had their release approved, 16 others have had their ongoing imprisonment approved, and one other man — the notorious torture victim Abu Zubaydah — is awaiting a decision. This is a much lower proportion of recommendations for release (just 26%), but it still means that six men — long regarded as so significant that they were recommended for trials — have been approved for release.

Guleed Hassan Ahmed has his ongoing imprisonment approved

Of the two men whose ongoing imprisonment was recently approved by Periodic Review Boards, the first is Guleed Hassan Ahmed aka Gouled Hassan Dourad (ISN 10023), a Somali prisoner who arrived at the prison in September 2006 from CIA “black sites,” along with 13 other men including the alleged 9/11 architect, Khalid Sheikh Mohammed. All were described as “high-value detainees,” but that designation has not entirely stood up under scrutiny. Although six of the HVDs have been put forward for trials, one was successfully transferred for prosecution in the US, and another has reached a plea deal at Guantánamo, the other six have not been put forward for trials, although Guleed Ahmed is the only one who was not even recommended for prosecution by Obama’s task force in 2009, which, as I described it at the time of his PRB in August, “suggest[ed] that the government does not really have much of a case against him.”

In their Final Determination approving his ongoing imprisonment on September 29, 2016, the board members determined, by consensus, that “continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States,” and noted that they had “considered [his] long history with al-Qa’ida as well as providing logistical and operational support to al-Qa’ida in East Africa (AQEA) leaders, including casing Camp Lemonier in Djibouti, the target of an AQEA plot.”

In addition, the board members complained that he had “minimized his role in assisting AQEA,” and noted “the lack of specificity and credibility in [his] responses to questions regarding a change in mindset, and [his] lack of candor regarding periods of noncompliant behavior and anti-US statements while in detention.”

Nevertheless, the board members also recognized the fact that he has a “large family” with an “ability to support him,” and were also approving of “his presentation of reasonable thoughts on a plan for supporting himself,” and they added that “[t]he Board looks forward to reviewing [his] file in six months and encourages him to be more candid about his past and current mindset” — a suggestion, I believe, that he has a chance of persuading the board to approve his release if he engages more in demonstrating that he genuinely does not pose a threat the US.

In response to the decision, the New York-based Center for Constitutional rights issued the following complaint, which I find understandable, because Guleed Ahmed was not even represented by his lawyers at his PRB — a situation which, as the PRBs’ history has demonstrated, does nothing to help support a recommendation for release:

The Board made the wrong decision. We are disappointed but not surprised. Guled’s hearing was beset by problems and grossly unfair. He did not have adequate time to prepare for the hearing and appeared before the Board without counsel. He should not have been brought to Guantánamo 10 years ago, and his continued detention only serves as another opportunity for the Obama administration to avoid accountability for what happened in the CIA torture program. Indeed, we know from other cases that the Board routinely relies on evidence obtained by torture, including evidence rejected by the federal courts. This process was fundamentally flawed.

CCR added, “We look forward to filing a habeas petition to force the government to release Guled,” although it is difficult to see how a habeas petition would have  a better chance of success, as the habeas litigation was thoroughly undermined by the appeals court in Washington, D.C. from 2009 to 2011, with the result that no prisoner has won a habeas petition in the courts since the summer of 2010.

Hambali’s ongoing imprisonment is approved

The second prisoner to have his ongoing imprisonment approved by a PRB is Hambali (ISN 10019), an Indonesian who was born Encep Nurjaman, but is also known as Riduan Isamuddin. His review took place on August 18, and his Final Determination was dated September 19, although, as with Guleed Ahmed, no clue was given as to why it took so long to announce the results.

As the US authorities described him for his PRB, every indication is that Hambali was “an operational mastermind in the Southeast Asia-based Islamic extremist group Jemaah Islamiyah (JI),” who “served as the main interface between JI and al-Qa’ida from 2000 until his capture in mid-2003,” and the only real surprise in his being put forward for a PRB is that he has not been put forward for a trial instead — if not in the military commissions, then perhaps in Australia, where most of the victims of the October 2002 Bali bombing, widely attributed to Hambali, were from.

In their final determination, the board members “considered [Hambali’s] lengthy history as a jihadist, working as a facilitator, attending al-Qa’ida training, and engaging in extremist support in Afghanistan and Southeast Asia, as well as [his] significant role in major terrorist attacks and plotting. “

The board members also “noted that [he] was not willing to accept any responsibility nor demonstrate any remorse for any of the activities or operations to which he has been connected, and the lack of supporting evidence of a change in mindset,” adding, “in fact, the Board noted [his] claimed change of mindset is contradicted by other reporting.” The board members also “considered [his] testimony to be elusive and non-credible, including half-truths and clear attempts to minimize and conceal his pre-detention activities.”

This is a pretty damning analysis of Hambali’s unsuitability for release, but in response, his civilian attorney, Ohio federal public defender Carlos Warner, told the Miami Herald that the review process was “a sham.” He explained that, as the Miami Herald put it, “he was forbidden to ‘participate in the hearing in a meaningful way.’” because he “was unable to get to Guantánamo for the video-teleconference hearing, transmitted between the captive at the base and the board not far from the Pentagon in Virginia.” His assessment of the board’s decision-making was as follows: “The Department of Defense has demonstrated that it is only interested in processing cases in a predetermined fashion without a full and fair hearing.”

I think Warner may be right that, in some cases — specifically, the majority of the “high-value detainees” — the authorities know in advance that they will not be approving the prisoners’ release, but in Hambali’s case, and others, I do think this is not because there is a clear case for their release, but rather there appears to be a compelling case for their prosecution.

If trials are not possible because of the torture to which these men were subjected, then it is one of the abiding problems of the Bush administration’s brutal “war on terror,” and, moreover, one which will continue to haunt anyone concerned with justice, as opposed to the vengeance that, it is clear to see with hindsight, actually drove much of the US’s approach to counter-terrorism in the wake of the 9/11 attacks.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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).

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