Guantánamo Lawyer: It is “Entirely Unprecedented” for Trump to “Take the Position That There Will Be No Transfers out of Guantánamo Without Regard to the Facts”

29.12.17

Abdul Latif Nasser and Sufyian Barhoumi, two of the five prisoners still held at Guantanamo who were approved for release by high-level government review processes under President Obama.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

Just before Christmas, in an article entitled, “Men due to leave Gitmo under Obama seem stuck under Trump,” the Associated Press shone a light on the plight of five men approved for release from Guantánamo by high-level US government review processes under President Obama, but who were not released before Donald Trump took office. I wrote about these men for Al-Jazeera in June, in an article entitled, “Abdul Latif Nasser: Facing life in Guantánamo,” but it was excellent to see an update from the AP, because there has been no progress from Trump, who, while not following up on his ill-considered urges to expand the use of the prison, has effectively sealed it shut, showing no sign that he has any desire to follow up on the decisions to release these five men by freeing them.

In my article in June, I focused in particular on the case of Abdul Latif Nasser, a Moroccan prisoner who was approved for release in July 2016 by a Periodic Review Board, a parole-type process set up in 2013 by President Obama to assess the cases of men previously regarded as legitimate candidates for indefinite detention without charge or trial. They had been regarded as “too dangerous to release” by a previous review process, the Guantánamo Review Task Force, which met once a week throughout 2009, although the officials responsible for the PRBs also conceded that insufficient evidence existed to put them on trial, a tacit admission that the evidence itself was profoundly untrustworthy. This was definitively established by the PRB process between 2013 and 2016, when 64 men had their cases reviewed, 38 were approved for release, and all but Nasser, and an Algerian, Sufyian Barhoumi, were freed.

As I explained in my article in June, Nasser missed being released by just eight days, because the Moroccan government only notified the US that it would accept his repatriation on December 28, 2006, 22 days before Obama left office, but 30 days’ notification is required by Congress before any prisoner can be freed.

Revisiting Nasser’s story, the AP (who described him in their article as Abdellatif Nasser) noted that he “allowed himself to get excited” when he got the news about his PRB success, and “to think about Moroccan food, imagining he would be home in no time.” As he said at the time, “I’ve been here 14 years. A few months more is nothing.”

But, as the AP continued, “his optimism turned out to be misplaced,” and now “he is one of five prisoners who the US cleared to go but whose freedom is in doubt” under Donald Trump.

Shelby Sullivan-Bennis of Reprieve, Nasser’s lawyer, who told him about his pending release, said to the AP, “We had hoped until the last moment that he might still be released. When it didn’t happen we were crushed. That eight-day foible has turned into a potential lifetime of detention.” She added, ”The daily reality of what it means to them is really settling in.”

The AP also mentioned the other men approved for release but still held (in addition to Nasser and Sufyian Barhoumi), who come from Yemen and Tunisia, adding, “Another was born in the United Arab Emirates but has been identified in Pentagon documents as an ethnic Rohingya who is stateless.” I discussed Barhoumi’s case in my article for Al-Jazeera in June, and, revisiting it, the AP noted that “he was expected to go just before Obama left office, but then Defense Secretary Ash Carter did not sign off on the transfer and he had to stay behind despite a last-minute legal appeal filed in a federal court in Washington on behalf of him and Nasser.”

The other three were approved for release in 2009 by the Guantánamo Review Task Force, and they include Tawfiq al-Bihani, a Yemeni whose lawyer, George Clarke, told me that “he was supposed to be settled in Saudi Arabia with nine other men in 2016 but “was pulled at the last minute” for reasons that were not explained. The other two, I noted, “have refused all legal representation and have made it clear that they do not want any attention from the media.” The AP, writing of the three men, noted, “It’s not publicly known why the US has not been able to resettle them. A lawyer appointed to represent the one born in the UAE says the man has never agreed to a meeting.”

Although Donald Trump has not added to the prison’s population despite threatening to do so, his refusal to release anyone marks the darkest period in Guantánamo’s long history when it comes to acknowledging that indefinite detention without charge or trial is an unjustifiable aberration for a nation that claims to respect the rule of law, as the US does. Persistently stung by criticism, George W. Bush began releasing prisoners just four months after Guantánamo opened, in May 2002, and released 532 throughout his presidency. A further 196 men were released by President Obama, and one other prisoner was transferred to the US mainland for a trial (a process that would have continued had Congress not issued a ban on bringing any Guantánamo prisoners to the US mainland for any reason — an unjustifiable ban that remains in place to this day). Nine other prisoners died at Guantánamo, many under dubious circumstances.

Nailing the dangerous significance of Donald Trump’s refusal to contemplate releasing any prisoners from Guantánamo, Pardiss Kebriaei, an attorney with the New York-based Center for Constitutional Rights, which represents Sufyian Barhoumi, said, ”It is entirely unprecedented for an administration to take the position that there will be no transfers out of Guantánamo without regard to the facts, without regard to individual circumstances.”

41 prisoners are still held at Guantánamo — the five approved for release, ten facing or having faced trials by military commission, and 26 others whose ongoing imprisonment was upheld by the PRBs. Their cases continue to be reviewed, but, as the AP put it, lawyers “are considering filing new legal challenges, arguing that a policy of no releases would mean their confinement can no longer legally be justified as a temporary wartime measure.”

The Trump administration has not officially announced what its Guantánamo policy is, but the AP noted that, before he took office, Trump tweeted, “There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield” — lies and distortions that Tom Wilner and I, the co-founders of Close Guantánamo, took apart at the time in an op-ed for the New York Daily News.

Air Force Maj. Ben Sakrisson, a Pentagon spokesman, failed to provide clarification. He “said detainee case files will still be reviewed on a periodic basis,” but added that the government “is still considering whether or not to transfer detainees.”

The AP also touched on the contentious topic of alleged recidivism amongst former Guantánamo prisoners, citing the latest irresponsible report by the Office of the Director of National Intelligence, which, for many years, has been issuing reports, never backed up by evidence, claiming alarming-sounding recidivism rates. As the AP noted, in its most recent report this summer, the DNI claimed that “about 17 percent of the 728 detainees who have been released are ‘confirmed’ and 12 percent are ‘suspected’ of re-engaging in such activities,” although “the vast majority of those re-engagements occurred with former prisoners who did not go through the security review that was set up under Obama” (in other words, they were under George W. Bush), and “[t]he recidivism rate for those released after those measures were adopted dropped to 4 percent confirmed and 8 percent suspected.”

The AP’s article ended with further reflection on the case of Abdul Latif Nasser, who is now 53 years old, and who, having been a foot soldier for the Taliban in Afghanistan, has ended up at Guantánamo studying “math, computer science and English [and] creating a 2,000-word Arabic-English dictionary,” and, via a military official appointed to represent him at his PRB, told his board members that he ”deeply regrets his actions of the past.”

Shelby Sullivan-Bennis said that, when Nasser “learned he wasn’t going home, he initially stopped taking calls from his lawyers and they feared he might try to kill himself.” She added, however, that more recently “he has tried not to lose hope.”

Another of his attorneys at Reprieve, Clive Stafford-Smith, the organization’s founder, said, after visiting Nasser recently, that he was “worried some in his large extended family won’t recognize him if he does go home.”

“He holds it in,” Stafford Smith said, although he added, “You can see tears welling up in his eyes but he tries to put up a positive front.”

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 music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), 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). He is also the narrator of a new documentary film, “Concrete Soldiers UK” (2017), about the shameful destruction of social housing in the UK, and in 2017 he also set up the campaign, “No Social Cleansing in Lewisham,” as well as his London photo project, “The State of London.”

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.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

7 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, following up on an Associated Press article from before Christmas about the five men still held at Guantanamo (out of 41 in total) who were approved for release by high-level government review processes under President Obama, but who Donald Trump has no interest in releasing – with a particular focus on Abdul Latif Nasser and Sufyian Barhoumi. The quote is from Pardiss Kebriaei of the Center for Constitutional Rights, and I found it noteworthy that lawyers “are considering filing new legal challenges, arguing that a policy of no releases would mean their confinement can no longer legally be justified as a temporary wartime measure.”

  2. Andy Worthington says...

    David Knopfler wrote:

    Grotesque

  3. Andy Worthington says...

    Yes, it’s a small but telling example, David, of the contempt with which Donald Trump holds the normal functions of government. Obama set up envoys to work on transferring prisoners out of Guantanamo and monitoring them after release, but Trump doesn’t care. He ignores the results of high-level US government processes whereby low-level prisoners can be released (because there is no other mechanism whereby they can ever be released), and he also shows disdain for America’s national security by refusing to spend any money or pay any attention to what happens to prisoners after their release. I wrote about this earlier this year, and nothing has changed: https://www.closeguantanamo.org/Articles/250-Shutting-the-Door-on-Guantanamo-The-Significance-of-Donald-Trumps-Failure-to-Appoint-New-Guantanamo-Envoys

  4. Andy Worthington says...

    David Knopfler wrote:

    Andy He could be made to care – but we have to face facts: GTMO isn’t an easy sell, despite it being such an obvious abuse of human rights.

  5. Andy Worthington says...

    Mainly what’s happening is that his advisers are restraining him, David – pointing out that there is no good reason whatsoever to bring anyone new to Guantanamo, for example, and that the federal courts are the best place for prosecuting anyone accused of terrorism. But with the bigger picture – the need to close it once and for all – it’s difficult to see how we can exert the necessary leverage.

  6. Tom says...

    Trump’s Guantanemo policy? Out of sight, out of mind.

  7. Andy Worthington says...

    Sadly, yes, Tom. And for Trump himself, to the extent that he thinks about it, or is capable of thinking about it, I believe he has a completely undeveloped notion that they’re all “bad guys.”

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Andy Worthington

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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