Two Yemenis Approved for Release from Guantánamo, as Detention of Two Saudis Upheld, Including Torture Victim Mohammed Al-Qahtani

With just 168 days left for President Obama to close the prison at Guantánamo Bay, as he promised when he first took office in January 2009, the reassuring news is that there are now just 76 men held, and 34 of those men have been approved for release. 13 of the 34 were approved for release in Obama’s first year in office, by an inter-agency task force he established to review the cases of all the prisoners held at the start of his presidency, while 21 others have been approved for release since January 2014 by Periodic Review Boards. See my definitive Periodic Review Board list here on the Close Guantánamo website.

The PRBs, another inter-agency process, but this time similar to parole boards, have been reviewing the cases of all the men who are not facing trials and who had not already been approved for release, and, to date, 56 reviews have taken place, with 32 men being approved for release (and eleven of those already freed), and 16 approved for ongoing imprisonment, while eight decisions have yet to be taken. This is a 67% success rate for the prisoners, and ought to be a source of shame for the Obama administration’s task force, which described these men as “too dangerous to release” or recommended them for prosecution back in 2009.

In the cases of those described as “too dangerous to release,” the task force acknowledged that insufficient evidence existed to put them on trial, but clearly failed to recognize that their recommendations were based on extreme, and, it turns out, unjustifiable caution. In the cases of those recommended for trials, embarrassingly, the basis for prosecution collapsed in 2012-13 when appeals court judges struck down some of the only convictions secured in the troubled military commission trial system on the basis that the war crimes for which the men had been convicted were not internationally recognized, and had been invented by Congress.

Four of these decisions in the Periodic Review Boards were announced in the last week and a half, after the most recent decisions I reported — to approve for release Ravil Mingazov, the last Russian in Guantánamo, and to approve for ongoing imprisonment Haroon Gul, known to the authorities as Haroon al-Afghani, who is one of the last prisoners to arrive at Guantánamo, in 2007.

Of the four, two men, both Yemenis — Musa’ab al-Madhwani (ISN 839) and Hail Aziz Ahmed al-Maythali (ISN 840) — were recommended for release. Both men were seized in Karachi, Pakistan on September 11, 2002, the first anniversary of the 9/11 attacks, and, as the US government acknowledged, were mistakenly described as members of an Al-Qaeda cell.

The first to be approved for release, Musa’ab al-Madhwani, had his case reviewed on June 28, 2016, and the decision was taken on July 28, 2016. The decision to release him was unsurprising, and it is only a shame that it has taken so long. In December 2009, a judge reluctantly turned down his habeas corpus petition, because of the narrowness of the requirements for turning down habeas requests, and as I explained at the time of al-Madhwani’s PRB, District Judge Thomas F. Hogan “did not think Madhwani was dangerous,” noted that he had been a “model prisoner” since his arrival at Guantánamo in October 2002, and explained, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.”

In its final determination, the board members, “by consensus, 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 members also provided a rundown of how al-Madhwani had addressed all of their concerns. They described how they had considered that his “degree of involvement and significance in extremist activities has been reassessed to be that of a low-level fighter,” and also noted that he “has taken advantage of educational opportunities while at Guantánamo,” as well as describing his “lack of expression of support for extremist ideologies [or] anti-American sentiment,” his “lack of ongoing extremist ties,” and his “strong familial support network,” plus the fact that he “has been highly compliant throughout detention.”

Al-Madhwani will now be held until a third country is found that will offer him a new home, as the entire US establishment agrees that no Yemenis can be repatriated from Guantánamo because of fears about the security situation in Yemen.

On August 1, another of the “Karachi Six,” Hail Aziz Ahmed al-Maythali (aka Hayil al-Maythali), was also approved for release. His PRB took place on June 30, 2016, and, as I explained at the time, his lawyer, Jennifer Cowan, particularly explained how her client’s initial anger about his imprisonment had been replaced by a maturity and self-awareness that was obviously recognized by the board. As she stated, “he has grown substantially as a person. He recognizes that he made bad decisions in the past and he has no interest in repeating these mistakes. Hayil realizes that it was a mistake to go someplace else and fight for a cause that was not his. He does not blame America for his current situation, he blames himself for his actions.”

In their final determination, the board members, having, as with all the men approved for release, determined, by consensus “that continued law of war detention … is no longer necessary to protect against a continuing significant threat to the security of the United States,” focused in particular on how his “degree of Involvement and significance in extremist activities has been reassessed to be that of a low-level fighter,” and how, although he “admitted to fighting with the Taliban, he explained his rationale for doing so and articulated his regret.”

The board members also “noted the availability of familial and financial resources and structures within the region,” as well as al-Maythali’s “progression over the past few years to be more open to other cultures.” Finally, the members noted that he “has no known close associations with terrorists outside of Guantánamo.”

Unlike al-Madhwani, who was recommended for resettlement in any country, the board members, in al-Maythali’s case, recommended “transfer only to an Arabic-speaking country, preferably a GCC [Gulf Cooperation Council] country”; in other words, Saudi Arabia, Kuwait, the United Arab Emirates, Qatar, Bahrain or Oman.

Of the two men whose ongoing imprisonment was recommended, the first was Mohammed al-Qahtani (ISN 063), a Saudi prisoner and an alleged 20th hijacker for the 9/11 attacks, who was subjected to a specific torture program in Guantánamo, the first that has ever been acknowledged publicly by a senior Pentagon official.

Al-Qahtani’s case was reviewed on May 16, 2016, as I discussed here, and the decision was taken on July 18, 2016, with the board members being unswayed by al-Qahtani’s lawyers’ explanations of his severe mental health issues predating his capture, despite the fact that, as they put it, Dr. Emily Keram, an expert witness who examined him, “concluded that Mr. al-Qahtani’s pre-existing mental illnesses likely impaired his capacity for independent and voluntary decision-making well before the United States took him into custody, and left him ‘profoundly susceptible to manipulation by others.’” As the lawyers added, “These findings call into serious question the extent to which it would be fair to hold Mr. al-Qahtani responsible for any alleged actions during that period of his life. They also cast doubt on any claims that Mr. al-Qahtani would have been entrusted with sensitive information about secret plots.”

In their final determination, however, the board members, having 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,” pointed out that they had “considered [his] past involvement in terrorist activities, to include almost certainly having been selected by senior al-Qa’ida members to be the 20th hijacker for the 9/11 attacks and, after failing in that effort, returning to Afghanistan and fighting on the front lines against the Northern Alliance.”

The board members also “noted its inability to assess [his] current mindset and credibility due to this refusal to respond to questions regarding his reasons for traveling to Afghanistan and ensuing activities,” adding, “The lack of information prevented the Board from understanding how and to what extent his psychiatric condition contributed to his decisions during that time.”

In conclusion, the board members sounded a note of cautious optimism for those seeking al-Qahtani’s release, stating that they recognize “the benefits of the Mohammed bin Naif rehabilitation program” in Saudi Arabia, which has treated numerous returning Guantánamo prisoners, and others who have engaged in militancy and terrorism. They added that they also recognized “the available family support,” and encouraged “officials of the Mohammed bin Naif Counseling and Care Center to work with the detainee to begin treatment for his mental health diagnoses while at Guantánamo.”

They also welcomed “additional information from the Saudi government for consideration in future reviews,” commended al-Qahtani “for his recognition of his mental health diagnoses,” and stated that they looked forward to reviewing his file in six months, as with all prisoners whose ongoing imprisonment is recommended, as well as encouraging him “to be more forthcoming with the Board in future reviews and to cooperate with mental health officials.”

The final decision — another decision to recommend ongoing imprisonment — was for Ghassan al-Sharbi (ISN 682), described as Abdullah al-Sharbi, another Saudi, whose case was reviewed on June 23, 2016, as I discussed here. The decision was taken on July 25.

Al-Sharbi doomed his chances of being recommended for release by refusing even to meet with his personal representative, a military official appointed to help prisoners with their reviews. Seized with the alleged ”high-value detainee” Abu Zubaydah and accused of being a bomb-maker, he has been persistently uncooperative at Guantanamo, even though, many years ago, I met his then-military defense lawyer and his sister, who both described a man at odds with the US military’s assessment of him.

Nevertheless, in their final determination, having reached an agreement, by consensus, that “continued law of war detention … remains necessary to protect against a continuing significant threat to the security of the United States,” the board members “considered [his] past involvement in terrorist activity to include selection by senior al-Qa’ida leaders to receive training on the manufacture of remote controlled improvised explosive devices and his attending meetings with senior al-Qa’ida leaders where they may have discussed attacks against the United States,” adding that they “also noted [his] mostly non-compliant and hostile behavior while in detention, including organizing confrontations between other detainees and the guard force.” Finally, they “considered [his] prior statements expressing support for attacking the United States, and [his] refusal to discuss his plans for the future.”

They did, however, state that they appreciated his “candor at the hearing” — which was the first mention of how he had behaved — and encouraged him “to engage with his Personal Representative for future reviews and answer questions in any future hearings.”

Note: Of the eight decisions not yet taken, most relate to the most recent reviews, although  three are overdue, as decisions are generally expected within one to two months — for Said Salih Said Nashir (ISN 841), the last of the “Karachi Six,” whose case was reviewed on April 21, for Jabran al Qahtani (ISN 696), reviewed on May 19, and for Sufyian Barhoumi (ISN 694), reviewed on May 26. The latter two were seized with Ghassan al-Sharbi, Abu Zubaydah and others.

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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