Four “High-Value Detainees” Have Their Ongoing Imprisonment at Guantánamo Upheld by Periodic Review Boards

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On September 8, as I reported here, Hassan bin Attash, a former child prisoner and the younger brother of a “high-value detainee,” became the 64th and last prisoner to have his case considered by a Periodic Review Board. Set up in 2013 to review the cases of all the prisoners who are not facing trials (just ten men) or who had not already been approved for release by an earlier review process (2009’s Guantánamo Review Task Force), the PRBs began in November 2013, and function like parole boards. If prisoners can demonstrate contrition, and can also demonstrate that they bear no malice towards the US, and have coherent post-release work plans, and, preferably, supportive families, then they can be recommended for release.

Noticeably, of the 64 prisoners whose cases have been considered, 33 — over half —have had their release approved (and 20 of those have been freed), while 23 others have had their ongoing imprisonment approved. Eight decisions have yet to be taken. See my definitive Periodic Review Board list on the Close Guantánamo website for further details.

At the time of Hassan bin Attash’s PRB, just 19 men had had their ongoing imprisonment approved, but in the last three weeks four more decisions were announced — all decisions to continue holding the men whose cases had been reviewed. Fundamentally, this was not a surprise — the four men were all “high-value detainees,” men held and tortured in CIA “black sites” before their arrival at Guantánamo, and although seven HVDs have had PRBs, none have yet been approved from release (the three others are awaiting decisions).

At the time of the Guantánamo Review Task Force, the seven HVDs had been recommended for prosecution, along with the eight other HVDs in custody at the time, and 21 other men. However, most of these prosecutions became regarded as untenable after two particularly crucial appeals court decisions in 2012 and 2013, when judges overturned some of the few convictions secured in Guantánamo’s military commission trial system on the basis that the war crimes for which the men had been convicted had been invented by Congress and were not legitimate.

As a result, 23 of the 36 men recommended for prosecutions were, instead, made eligible for PRBs, along with 41 other men who had been described by the task force as “too dangerous to release,” even though the task force had also recognized that insufficient evidence existed to put them on trial; in other words, that it was not evidence at all, but, in most cases, profoundly unreliable information produced by the prisoners themselves, or their fellow prisoners, often when abuse was widespread, or by men being held and tortured in “black sites.”

The PRBs have revealed a clear discrepancy between the two groups. While 27 out of 37 of those initially described as “too dangerous to release” have so far been approved for release, just six out of 19 of those initially recommended for prosecution have secured a similar result. All will be subjected to further reviews (see the end of this article for further information), but it is uncertain if it is wise, in most cases, to presume that the outcome would be any different, raising questions about how legitimate a parole-type process is for defending the ongoing imprisonment of men who, unlike those facing parole boards in the judicial system on the US mainland, have never been tried or convicted of any crime.

Malaysian “high-value detainees” have their ongoing imprisonment upheld

Of the four men whose ongoing imprisonment was upheld recently, the first two are the Malaysian “high-value detainees” Mohd Farik bin Amin aka Zubair (ISN 10021) and Bashir bin Lap (or Mohammed Bashir bin Lap) aka Lillie (ISN 10022), whose PRBs took place last month. The two are — or were — close associates of Hambali (Riduan Isamuddin), an Indonesian described by the US authorities as “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.” Bin Lap was captured with Hambali, while bin Amin was seized two months earlier. Hambali is also held at Guantánamo, and also received a PRB last month.

Bin Amin (Zubair) was described as “fiercely loyal” to Hambali in his PRB, which did not augur well for a recommendation for release. Nor too did his lack of plans if he were to be released, but above all, I am sure, it was his apparently unreconstructed attachment to terrorism that would have led to the board recommending his ongoing imprisonment, and while I understand their point of view, I must say that I find it disappointing that the US authorities have not found a way for him to be prosecuted elsewhere if they cannot do so themselves.

In their final determination for his PRB, dated September 15, 2016, the review 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,” explained that, in making their determination, they had “considered [his] involvement with senior al-Qa’ida leaders, to include agreeing to be a part of an al-Qa’ida suicide operation and facilitating transfers of funds used in terrorist attacks.”

They also “noted [his] susceptibility to recruitment by extremists due to his continued feeling of an obligation to defend and support oppressed Muslims,” and also “considered that [he] continues to believe that operations targeting the military are legitimate, including the attack on the USS Cole” (in 2000). They also remarked on “the lack of credible evidence of a change in mindset.”

On the positive side, the board members also recognized his “compliant behavior in detention, his large family and its ability to support him as well as his general candor regarding his past activities,” and it is conceivable that these aspects of his circumstances will become more significant as further reviews take place in the coming years.

In Bashir bin Lap’s case, the review board members also reached their decision on September 15, and in their final determination noted, as with bin Amin, that they had “considered [his] involvement with senior al-Qa’ida and JI leaders to include agreeing to be a part of a suicide operation and facilitating money transfers of funds used in terrorist attacks.”

They also “noted [his] susceptibility to recruitment due to his tendency to follow others, and the lack of information showing action on his part to separate himself from others with extremist views that he claims he no longer shares.” In addition, the board members “considered the complete lack of independent information regarding the views, willingness, and ability of [his] family to support him upon transfer and/or a potential government rehabilitation program available to him.”  They also “noted the lack of supporting evidence of a change in [his] mindset.”

In contrast, the board members also recognized his “general candor regarding his past activities and his acknowledgement of the challenges he would face in staying away from reengagement possibilities,” and, in conclusion, they stated that they looked forward to reviewing his file in six months, and, in the meantime, “strongly encourage[d] that efforts be made on his behalf to engage with his family and Malaysian government officials with regard to what would be in place if [he] was transferred.”

This was a considerably more positive outcome than in bin Amin’s case — in particular, it is clear, because bin Lap claimed he no longer shared extremist views, and, as a result, the board members were actively encouraging him, his family and the Malaysian authorities to get involved in establishing a credible plan for his life if he were to be released.

And in fact, no sooner had the result of the PRB been announced than the Malaysian Deputy Prime Minister, Ahmad Zahid Hamidi, was explaining that bin Lap “may be relocated to Malaysia but he will have to continue the deradicalization process in prison.” The Star Online reported that the deputy PM “said this was conveyed to him during a meeting [on September 21] with Lee Wolowsky, the United States Special Envoy for Guantánamo Closure.”

Libyan “high-value detainee” has his ongoing imprisonment upheld

The third decision taken by the Periodic Review Board members was to uphold the ongoing imprisonment of Abu Faraj al-Libi (ISN 10017), whose review also took place last month, as I wrote about here. Another of the 14 “high-value detainees” transferred to Guantánamo from CIA “black sites” in September 2006, he was one of the last HVDs to be seized, in Pakistan in May 2005.

The chances of al-Libi being approved for release were, to be frank, non-existent, in part because, according to the US authorities, in 2003 he “became al-Qa’ida’s general manager and third in command following the detainment of several senior al-Qa’ida leaders,” but also because he refused to attend his hearing, and it is impossible to be approved for release without engaging with the process. As with the Malaysians, however, the approval for his ongoing imprisonment makes me wonder why, if al-Libi was so significant, there is no untainted evidence that can be used to prosecute him.

The review board’s decision in al-Libi’s case was delivered on September 16, and in their final determination, the board members explained that they had “considered [al-Libi’s] involvement with al-Qa’ida to include acting as the group’s general manager and a trusted advisor for, and communications conduit to, Usama Bin Ladin [sic] and deputy amir Ayman al-Zawahiri,” and had also noted [his] continued statements supporting extremist activity, such as praising attacks against Western targets, to include 9/11, and expressing support for future attacks against Western civilian targets.” Finally, as noted above, the board members also noted that they were “unable to assess [his] credibility due to his decision not to participate in the hearing.”

The last prisoner to arrive at Guantánamo has his ongoing imprisonment upheld

The last of the recent decisions was to uphold the ongoing imprisonment of Muhammad Rahim (ISN 10029), an Afghan who was the last prisoner to arrive at Guantánamo, in March 2008. Also regarded as a “high-value detainee,” he has been described by the US authorities as “a close associate” of Osama bin Laden, and the military’s summary for his PRB also assessed that he “views his time in detention as a continuation of jihad,” and “claims the guard staff and the detainees’ lawyers are enemies,” although his attorney, Carlos Warner, a federal public defender for the Northern District of Ohio, has released letters from his client that tell a completely different story — of a man fascinated with US culture, and with a attractive sense of humor. “I like this new song Gangnam Style,” Rahim wrote a few years ago, adding, “I want to do the dance for you but cannot because of my shackles.”

In their final determination, issued on September 19, the board members stated that they had “considered that [Rahim] was a trusted member of al-Qa’ida who worked directly for senior members of al-Qa’ida, including Usama Bin Laden [sic], serving as a translator, courier, facilitator, and operative.” They also claimed that he “had advanced knowledge of many al-Qa’ida attacks, to include 9/11, and progressed to paying for, planning, and participating in the attacks in Afghanistan against US and Coalition targets.” I must note, in passing, that I find it highly unlikely that an Afghan, however trusted, would have been privy to advance discussions about the 9/11 attacks, which would have required considerable secrecy to ensure their success — and please see below for Carlos Warner’s thoughts on this matter.

In addition, the board members commented on Rahim’s “lack of candor and credibility regarding the specifics of his activities prior to detention,” which “make his current mindset and intentions difficult to assess,” and, in conclusion, noted the significance of his “refusal to take responsibility for his involvement with al-Qa’ida, his consistent and long-standing expressions of support for terrorist attacks against the US, his indifference to the impact of his prior actions,” adding that “his extensive extremist connections provide him a path to re-engagement.”

On the face of it, this is quite damning, but as Carlos Warner explained to the Miami Herald, the board “didn’t get the full picture” because he — Warner — “wasn’t allowed” to participate in his client’s hearing.” Warner said, “He had no knowledge about 9/11 in advance. He is being held because he was in a black site, not because of what he did. if he did those things, why didn’t they charge him?” — all valid comments and questions, with which I concur, and I hope that, in future reviews, Warner will be allowed to take part in his client’s PRB.

Further reviews scheduled

While we await the last eight decisions from the first round of the PRBs, it is important to note that further reviews are already being lined up. For those whose ongoing imprisonment is recommended, 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 four that have taken place to date — all of which have led to recommendations for the prisoners’ release — took place within two years.

Of particular interest is the file review for a Yemeni prisoner, Salman Yahya Hassan Mohammad Rabei’i (ISN 508), which took place on August 31 or September 1. Rabei’i’s PRB took place in July 2015, but it took ten months for the decision to uphold his ongoing imprisonment to be made. He had been, at most, an insignificant Taliban foot soldier, although the authorities had expressed doubts about their own intelligence regarding his movements and activities, and, following his file review it was stated, “After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted.”

A date has not yet been set for this full review, but it seems reasonable to conclude that a decision will be taken to approve Rabei’i for release, based on information establishing his insignificance.

Other file reviews have also taken place recently, but no decisions have yet been announced — for Yassim Qasim Mohammad Ismail Qasim (ISN 522), whose review took place on August 31, for Mohammed Al-Ansi (ISN 029), whose review took place on September 13, and for Suhayl Abdul Anam al Sharabi (ISN 569), whose review took place on September 20.

Forthcoming are file reviews for Saifullah Paracha (ISN 1094) on September 27, Sharqawi Abdu Ali Al Hajj (ISN 1457) on October 4 and Khalid Ahmed Qasim (ISN 242), who has already had two file reviews, on October 18.

One full review has also been scheduled — for Moath Hamza Ahmed Al-Alwi aka Muaz al-Alawi (ISN 28) on October 18. This will also be a review worth watching, as al-Alawi, a Yemeni and a long-term hunger striker whose ongoing imprisonment was upheld last September, had a file review on April 14 this year, following which the board members stated that, “After reviewing relevant new information related to the detainee as well as information considered during the 22 September 2015 review, it was determined that a full hearing is warranted.”

Note: For a final story connected to the Periodic Review Boards, see this article in the Independent about how the transcript for the hearing for Ghassan al-Sharbi, whose PRB took place in June (leading to a decision in July to keep holding him), involved al-Sharbi telling the board that “he believed an unnamed member of the Saudi royal family was part of an effort to recruit him for violent extremist acts before the Sept. 11, 2001, 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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