Final Two Review Board Decisions Announced: 21 Men Now Approved for Release from Guantánamo

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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).

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