With Transfer of Ahmed Al-Darbi to Saudi Arabia, Guantánamo’s Population Drops to 40; No New Arrivals on Horizon

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So there was good news on Wednesday, when the Pentagon announced that Ahmed al-Darbi, a Saudi citizen in Guantánamo, had been repatriated, to serve out the rest of a 13-year sentence that he was given as the result of a plea deal that he agreed in his trial by military commission in February 2014.

Under the terms of that plea deal, al-Darbi acknowledged his role in an-Qaeda attack on a French oil tanker off the coast of Yemen’s coast in 2002, and was required to testify against other prisoners at Guantánamo as part of their military commission trials, which he did last summer, and was supposed to be released on February 20 this year.

However, February 20 came and went, and al-Darbi wasn’t released, a situation that threatened to undermine the credibility of the military commission plea deals.

Writing about al-Darbi in the New York Times, Charlie Savage noted that, after he “cooperated with investigators,” he “lived apart from the main detainee population,” and added that a court document “jointly prepared by prosecutors and defense lawyers for his sentencing said that his testimony against two other detainees facing tribunal charges was ‘unprecedented in similar counterterrorism prosecutions to date.’”

Charlie Savage also noted that al-Darbi’s transfer was “the first time a detainee has left the wartime prison under President Trump, who vowed to fill it back up but has now instead overseen a reduction in its population.”

In a statement made available to the media by his attorney, Ramzi Kassem, a law professor at the City University of New York, al-Darbi said, “My words will not do justice to what I lived through in these years and to the men I leave behind in prison. No one should remain at Guantánamo without a trial. There is no justice in that.”

These are powerful words, that, I wish, Donald Trump would listen to, but there is no sign that he is capable of understanding why Guantánamo is such a fundamental betrayal of US values, and why it should be closed.

Ahmed al-Darbi’s transfer from Guantánamo leaves 40 men at the prison, and, as the Times stated, “comes as the Trump administration has been struggling to fulfill the president’s strong desire to back up his chest-thumping campaign rhetoric about Guantánamo, even as counterterrorism and security professionals, including Defense Secretary Jim Mattis, have repeatedly argued that other approaches made more practical sense.”

My feeling is that Trump had to be made to understand that he had to honor al-Darbi’s plea deal, breaking through what, otherwise, is his complete antipathy towards releasing anyone from Guantánamo under any circumstances. For example, although five men were approved for release by high-level government review processes under President Obama, Trump has shown no sign of wanting to release them, and has undoubtedly been being advised by right-wingers whose opinion, as I know from exchanges with them in the past, is that the review processes were essentially political, and not about efforts to address the fundamentally shambolic nature of the Guantánamo detentions in the first place, while also being aware of security issues.

As the Times described the prison’s history, “George W. Bush’s claims that he could hold people there indefinitely without trial or judicial review and without obeying the Geneva Conventions … turned Guantánamo into a charged symbol around the world of prisoner abuses and American power.” Over time, “court interventions gave prisoners rights to hearings and to humane treatment under the Geneva Conventions, and conditions improved at the prison,” and in his second term in office, Bush even conceded that Guantánamo should be closed, because, as he wrote in his memoir, Decision Points, published in 2010, it “had become a propaganda tool for our enemies and a distraction for our allies.”

President Obama, as the Times put it, “significantly winnowed the inmate population without adding new detainees,” and was also blocked by Congress “from bringing several dozen detainees deemed untransferable to a different prison on domestic soil,” while Donald Trump, in contrast, boasted during the election campaign that he would not only keep Guantánamo open, but would also also “load it up with some bad dudes.”

That, however, has not happened, and as the Times explained, although Trump signed an executive order in January directing defense secretary Mattis “to recommend within 90 days a policy about how to handle future detainees, including whether or when to take them to Guantánamo,” and suggested that, “in many cases,” new prisoners would be sent to the prison, everything he has said and done has not, in fact, delivered a policy that involves bringing anyone new to the prison.

As the Times reported, on Wednesday the Pentagon said that Mattis “had provided updated policy guidance about when to propose transferring detainees to Guantánamo ‘should that person present a continuing, significant threat to the security of the United States,’” but “gave few details about the document.” However, other people familiar with it told the Times that “it was several pages long and consisted of screening criteria about what could make a terrorism suspect eligible for Guantánamo detention, without plainly specifying when that option should be preferred over alternative dispositions.”

One person the Times spoke to “portrayed the document as vague, and another said it made no major changes from existing policy.”

Spelling out the US’s recent detention policy involving foreigners allegedly involved in terrorism, the Times explained that “the government has tried to leave lower-level detainees in the hands of allies, while interrogating important captives at an overseas military base or on a naval ship,” and, after questioning, having allies take charge of them, or, as “a fallback option,” prosecuting them in a US federal court.

“Transfer to Guantánamo,” meanwhile, “has been a theoretical last resort.” No new prisoners have been sent to Guantánamo for ten years, and “many national security professionals” regard bringing new prisoners to Guantánamo as “unattractive for several reasons.” One is that it is “extremely expensive,” another reason is that, “in practice, the combination of an interrogation followed by a civilian-court prosecution has successfully garnered critical intelligence while also resulting in convictions and harsh sentences,” and a third reason is that the military commissions have “struggled to get contested cases to trial.”

The Times also pointed out that most discussions about bringing new prisoners to Guantánamo have focused on Islamic State prisoners, like the “two British men who were recently caught in Syria by a Kurdish militia.” Trump, and Obama before him, “contended that the legal authority Congress granted to the executive branch to use military force — like detaining people without trial — against Al Qaeda in 2001, and for the Iraq war in 2002, legitimately extends to the Islamic State,” but the Times point out that “it is not clear that their stance is lawful,” and that “[t]aking Islamic State detainees to Guantánamo would give a court an opportunity to rule that the larger conflict in Iraq and Syria is illegal.”

I leave the final word, for now, to Ramzi Kassem, who urged the US courts to respond positively to a habeas corpus petition submitted by eleven prisoners in January. As the Times described it, he “argued that the legal and security arguments for closing the prison were ‘overwhelming’ and blamed politics for why it has remained open under three presidents.”

“This is the first prisoner transfer under Trump,” he said, “but it may also be the last unless the courts meaningfully check the president’s claimed power to imprison men without charge for as long as he pleases.”

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 see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east 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, The Complete Guantánamo Files, 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.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009 (out of the 532 released by President Bush), and the 196 prisoners released from February 2009 to January 2017 by President Obama, whose stories are covered in more detail than is available anywhere else – either in print or on the internet – although many of them, of course, are also covered in The Guantánamo Files, and for the stories of the other 390 prisoners released by President Bush, see my archive of articles based on the classified military files released by WikiLeaks in 2011: June 2007 – 2 Tunisians, 4 Yemenis (here, here and here); July 2007 – 16 Saudis; August 2007 – 1 Bahraini, 5 Afghans; September 2007 – 16 Saudis; 1 Mauritanian; 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 – 3 Jordanians, 8 Afghans; 14 Saudis; December 2007 – 2 Sudanese; 13 Afghans (here and here); 3 British residents; 10 Saudis; May 2008 – 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 – 2 Algerians; 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 – 2 Algerians; September 2008 – 1 Pakistani, 2 Afghans (here and here); 1 Sudanese, 1 Algerian; November 2008 – 1 Kazakh, 1 Somali, 1 Tajik; 2 Algerians; 1 Yemeni (Salim Hamdan), repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 – 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 —1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani); 4 Uighurs to Bermuda; 1 Iraqi; 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad); 2 Syrians to Portugal; September 2009 — 1 Yemeni; 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); 2 Somalis; 4 Afghans; 6 Yemenis; January 2010 — 2 Algerians, 1 Uzbek to Switzerland; 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania; 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain; July 2010 — 1 Yemeni (Mohammed Hassan Odaini); 1 Algerian; 1 Syrian to Cape Verde, 1 Uzbek to Latvia, 1 unidentified Afghan to Spain; September 2010 — 1 Palestinian, 1 Syrian to Germany; January 2011 — 1 Algerian; April 2012 — 2 Uighurs to El Salvador; July 2012 — 1 Sudanese; September 2012 — 1 Canadian (Omar Khadr) to ongoing imprisonment in Canada; August 2013 — 2 Algerians; December 2013 — 2 Algerians; 2 Saudis; 2 Sudanese; 3 Uighurs to Slovakia; March 2014 — 1 Algerian (Ahmed Belbacha); May 2014 — 5 Afghans to Qatar (in a prisoner swap for US PoW Bowe Bergdahl); November 2014 — 1 Kuwaiti (Fawzi al-Odah); 3 Yemenis to Georgia, 1 Yemeni and 1 Tunisian to Slovakia, and 1 Saudi; December 2014 — 4 Syrians, 1 Palestinian and 1 Tunisian to Uruguay; 4 Afghans; 2 Tunisians and 3 Yemenis to Kazakhstan; January 2015 — 4 Yemenis to Oman, 1 Yemeni to Estonia; June 2015 — 6 Yemenis to Oman; September 2015 — 1 Moroccan and 1 Saudi; October 2015 — 1 Mauritanian and 1 British resident (Shaker Aamer); November 2015 — 5 Yemenis to the United Arab Emirates; January 2016 — 2 Yemenis to Ghana; 1 Kuwaiti (Fayiz al-Kandari) and 1 Saudi; 10 Yemenis to Oman; 1 Egyptian to Bosnia and 1 Yemeni to Montenegro; April 2016 — 2 Libyans to Senegal; 9 Yemenis to Saudi Arabia; June 2016 — 1 Yemeni to Montenegro; July 2016 — 1 Tajik and 1 Yemeni to Serbia, 1 Yemeni to Italy; August 2016 — 12 Yemenis and 3 Afghans to the United Arab Emirates (see here and here); October 2016 — 1 Mauritanian (Mohammedou Ould Slahi); December 2016 — 1 Yemeni to Cape Verde; January 2017 — 4 Yemenis to Saudi Arabia; 8 Yemenis and 2 Afghans to Oman; 1 Russian, 1 Afghan and 1 Yemeni to the United Arab Emirates, and 1 Saudi repatriated to Saudi Arabia for continued detention.