On September 9, as I reported at the time, the last of 64 Guantánamo prisoners to face a Periodic Review Board— Hassan bin Attash, who was just 17 when he was seized in September 2002 — had his case reviewed. A month later, a decision was taken in his case (to continue holding him), bringing the first round of the PRBs to an end, with two exceptions.
In the cases of two men whose cases were reviewed in April and May, the board members had been unable to reach a unanimous decision, and. for these two men, decisions were not reached until last week — November 21, to be exact. In the case of one man, Jabran al-Qahtani, a Saudi, the board members approved his release, while in the case of the other man, Said Nashir, a Yemeni, a decision was taken to recommend his continued imprisonment.
The decisions mean that, of the remaining 60 prisoners, 21 have been recommended for release —seven by the high-level, inter-agency Guantánamo Review Task Force, which President Obama established shortly after taking office in 2009, to review the cases of all the men he had inherited from George W. Bush, and 14 by the PRBs. For further information, see my definitive Periodic Review Board list on the Close Guantánamo website.
The PRBs — which include 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 review the cases after speaking to prisoners via video link from a facility in Virginia— were conceived of in 2009, when the Guantánamo Review Task Force identified 48 men as “too dangerous to release,” whilst conceding that insufficient evidence existed to put them on trial.
This meant, of course that the so-called evidence was actually profoundly unreliable, but as throughout Guantánamo’s history, everyone involved worried that, despite the chaotic and generally lawless circumstances in which most of the prisoners had been seized, and the lack of anything resembling plausible evidence against most of them, it was not worth risking letting someone go who might — just might— turn out to pose some sort of threat to the US after release.
It took until March 2011 for President Obama to issue an executive order authorizing the ongoing imprisonment without charge or trial of these 48 men, whilst also promising that they would have periodic reviews of their cases, and that these reviews would be complete within a year.
Despite the promise, the reviews did not even begin until November 2013 — a years and eight months after he promised they would end — and they did not end until four and a half years after he promised they would, a shamefully slow pace that would be inexcusable under any circumstances, but which ended up seeming particular harsh because the review boards’ deliberations — akin to parole hearings, although without anyone ever having been tried or convicted of anything — led to decisions that 35 of the 64 men overcautiously described as “too dangerous to release” in 2009 should be released.
The 29 others are entitled to further reviews —file reviews take place every six months, to which prisoners can submit any additional information they think is relevant, and full reviews, at which the prisoners can once more participate directly, are guaranteed every three years, although the first four that took place — which led to recommendations for the prisoners’ release — took place within two years.
It is not known at present whether the future of the PRBs will be secure under President Trump. It is to be hoped so, as this high-level, inter-agency process, which requires unanimous decisions, is doing a decent job of cutting through the scaremongering with which Guantánamo’s cheerleaders permanently describe all the prisoners, and moving towards the closure of the prison, which all decent, law-abiding people should welcome, in a manner that is careful and considered.
I hope that Donald Trump and his advisors recognize that the PRBs — far from being some sort of liberal conspiracy to free as many prisoners as possible — actually face considerable criticism from many of the prisoners’ attorneys, who accuse the boards of demonstrating too much caution, and uncritically accepting unreliable evidence as trustworthy.
In a second article to follow, I’ll look at the current state of affairs regarding the file reviews and full reviews for some of the 29 men recommended for ongoing imprisonment — including Said Nasher, who has already been put forward for a full review, which is taking place next week, on December 8 — and I hope that advocates for the closure of Guantánamo, and for justice for those still held, frame a good argument to try to persuade Trump and his advisors not to consider scrapping the review process when the businessman and reality TV star takes office in just seven weeks’ time.
Below are the decisions taken in the cases of Jabran al-Qahtani and Said Nashir.
Jabran al-Qahtani approved for release
Jabran al-Qahtani (ISN 696), as I noted at the time of his PRB, in May, was seized in the house raid in Pakistan in March 2002 that led to the capture of Abu Zubaydah, the supposed “high-value detainee” for whom the Bush administration’s torture program was set up, but who, in reality, was not the prominent al-Qaeda figure he was described as. A supposed bomb-maker, he had been put forward for a trial by military commission under President Bush, but the charges against him were dropped in October 2008. New charges were filed in January 2009, but were once again dismissed in January 2013, just a few months before the Periodic Review Boards were set up.
The PRB noted that, although he had received some training for bomb-making, he had been a “mostly compliant” prisoner at Guantánamo, and, as his attorney said, he “has come to deeply regret what he did while he was young, ignorant, and swept away by a movement he did not understand.”
In their Final Determination, the board members described how, by consensus, they had “determined that continued law of war detention of the detainee is no longer necessary to protect against a continuing significant threat to the security of the United States.”
The board members “considered” al-Qahtani’s “credible desire to participate in the Saudi rehabilitation program” — at the Mohammed bin Naif Counselling and Care Center — and his desire to “reintegrate into society,” and his “willingness to submit to the authority of the Saudi government.” The board members also expressed their “confidence in the efficacy of the Saudi rehabilitation program, and Saudi Arabia’s ability to implement security assurances after completion of the program.”
The board members also noted al-Qahtani’s “candor with the Board, including regarding his presence on the battlefield and his worldviews, [his] expressed regret and commitment to not repeat his past mistakes, [his] family’s commitment to support [him] on transfer, and [his] recent positive change in behavior and mindset while in detention.”
Whilst acknowledging his “past terrorist-related activities and connections, specifically [his] admission of support for the Taliban, association with two al-Qa’ida leaders, and his training in building electronic circuit boards,” the board members “found the risk [he] presents can be adequately mitigated by transfer for prosecution and rehabilitation in Saudi Arabia.”
The last line was surprising, as there had been no earlier mention of transfer for prosecution; merely, transfer to rehabilitation. Nevertheless, I presume that al-Qahtani would prefer prosecution and prison time in Saudi Arabia — if, indeed, that comes to pass — to endless imprisonment without charge or trial in Guantánamo, and it only remains now to be seen if his transfer can be completed before Obama leaves office, or, if not, if Donald Trump will honor it.
Said Nashir’s ongoing imprisonment approved
In the case of Said Nashir (ISN 841), as I wrote at the time of his PRB in April, he is one of six men swept up in raids in Karachi on September 11, 2002, and initially suspected of being part of a plot that led to them being described as the “Karachi Six.” By the time of their PRBs, however, the US government had walked back from its claims, conceding that, although the men had been “labeled as the ‘Karachi Six,’ based on concerns that they were part of an al Qa’ida operational cell intended to support a future attack,” it had become apparent, through “a review of all available reporting,” that “this label more accurately reflects the common circumstances of their arrest and that it is more likely the six Yemenis were elements of a large pool of Yemeni fighters that senior al-Qa’ida planners considered potentially available to support future operations.”
The other five men were all approved for release by PRBs — and two have been freed (in the UAE in August), while the other three are awaiting release, as third countries must be found for Yemenis because of an unwillingness, across the whole of the US establishment, to consider sending any of them home, because of the security situation in Yemen.
Nashir, however — or, as he is known to his attorneys, Hani Abdullah — failed to convince the board members that he was nothing more than part of “a large pool of Yemeni fighters that senior al-Qa’ida planners considered potentially available to support future operations.” Although the government stated that he “was probably intended by al-Qa’ida senior leaders to return to Yemen to support eventual attacks in Saudi Arabia, but [he] may not have been witting of these plans,” his perceived support for violent jihad seems to have convinced the board members to approve his ongoing imprisonment — although his scheduled file review next week suggests that his attorneys may have made available mitigating information that could lead to a reversal of that decision.
In their Final Determination, the board members “determined that continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States,” having “considered [his] past ties with al-Qa’ida’s external operations planner and senior leadership, including 9/11 conspirator Walid bin Attash.” The board members also “considered [his] lack of credibility due to his lack of candor and inconsistency in response to questions from the Board, including: reasons for going to and leaving Afghanistan, and his views on violence.”
The board members also noted what they described as his “recent expressions of continued support for jihad against ‘legitimate’ military or government targets and statements celebrating the idea of Muslims killing invaders, including continued interest in seeing footage of past al-Qa’ida attacks,” and also noted “his lack of detail regarding a plan for the future and his susceptibility to recruitment,” adding that, “[d]ue to his lack of credibility, truthfulness, evasiveness and cage answers lacking specifics,” they were “unable to assess [his] intentions for the future.”
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).
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.
When I posted this on Facebook, I wrote:
Here’s my latest article, catching up with the news from the Periodic Review Boards at Guantanamo, where decisions have been announced for the last two of the 64 men who cases have been reviewed over the last three years. One – Jabran al-Qahtani – has been approved for release back to Saudi Arabia (but also possibly for prosecution), while the other, Said Nashir, a Yemeni, has had his ongoing imprisonment upheld (although his case will be reviewed again just next week!) The decisions leave 21 of the 60 men still held at Guantanamo approved for release, and it’s also worth noting that, in total, 35 of the 64 men reviewed by PRBs have had their release recommended – a damning verdict on the caution that led to them being regarded, for too many long years, as “too dangerous to release.” For the 29 men approved for ongoing imprisonment, further reviews are forthcoming – unless, of course, the entire PRB system is scrapped by Donald Trump, which is possible.
Now updated – the definitive Periodic Review Board list: http://www.closeguantanamo.org/Periodic-Review-Boards
Also updated, the definitive list of all the prisoners remaining at Guantanamo, and their status: http://www.closeguantanamo.org/Prisoners
The ratio of 10 (charged by commissions) to 21 (cleared) to 29 (“forever” prisoners) seems less orderly than the 10-20-30 it had been before the recent decision. Well, each “clearance” is a small victory; each release is the real victory.
It is interesting to see if incoming DOD Secretary Mattis (let’s just assume he gets his required Congressional waiver of the too-recent-military-service-bar), as a career military officer, will see the overall value in maintaining the current review and release mechanisms, and will also see the value of reducing the census of and hopefully terminating the operation of GWOT detention operations at Guantanamo, and indeed, everywhere they are still going on.
It would be consistent with both the supposed pliability of Mr. Trump (supposedly Mattis has already talked him out of waterboarding) and Mr. Trump’s supposed commitment to rethink America’s imperial overreach… I suggested somewhere along the line that Trump at least presented the “Only Nixon Could Go to China” potential of finally bringing the GTMO nightmare to a close.
Not how I’d bet… but at least an intriguing possibility for now.
Yes, the uncertainty on almost every front right now is astonishing, TD.
I honestly don’t know what to think. I first came across Mattis in connection with the Afghan invasion – when he was an unnervingly bloodthirsty commander – but I’ll have to go and do some research into what exactly he said. I have a few books in mind to search for his exact quote.
However, while I’m reassured by his torture stance, on Guantanamo he has said, “We have observed the perplexing lack of detainee policy that has resulted in the return of released prisoners to the battlefield. We should not engage in another fight without resolving this issue up front.”
While this could well mean that Mattis recognizes the Geneva Conventions, the problem for the men still held at Guantanamo, of course, is that they’ve never actually been held according to those important conventions that are supposed to determine how we treat prisoners seized in wartime, and unless that’s resolved it’s not entirely appropriate to criticize the efforts that have been made to deal with the fallout from the Bush administration’s lawless idiocy.
I do hope that we don’t get any great shocks at Guantanamo, though, and that the PRBs continue, as does, crucially, the trajectory towards the prison’s eventual closure.
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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