No Escape from Guantánamo: An Update on the Periodic Review Boards
28.6.18
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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
Regular Guantánamo-watchers will know how wretched it is that Donald Trump is in charge of the prison at Guantánamo Bay, because he appears to have no ability or willingness to understand that it is a legal, moral and ethical abomination, where most of the 40 men still held are imprisoned indefinitely without charge or trial, in defiance of all agreed laws and treaties, and a handful of others are facing trials in a broken trial system, the military commissions, that is not fit for purpose.
Under George W. Bush, a total of 532 prisoners were released from Guantánamo, and Barack Obama released another 196. Trump, to date, has released just one man, a Saudi repatriated for ongoing imprisonment, who was only released because of a plea deal he had agreed to in his military commission proceedings in 2014, and has shown no interest in releasing anyone else, even though five of the 40 men still held were approved for release by high-level review processes under President Obama. With only nine men facing trials, that also leaves 26 other men in that unjustifiable limbo of indefinite imprisonment without charge or trial.
The only mechanism that exists that theoretically could lead to the release of any of these men is the Periodic Review Board system, the second review process set up by President Obama. The first, the Guantánamo Review Task Force, assessed in 2009 whether prisoners should be freed or tried or whether they should continue to be held without charge or trial. 156 were recommended for release, and 36 for prosecution, and 48 for ongoing imprisonment without charge or trial, on the basis that they were regarded as too dangerous to release, but insufficient evidence existed to put them on trial.
This was a move on Obama’s part that, sadly, enshrined indefinite imprisonment without charge or trial as his own policy, not just one inherited from Bush, but he did follow it up with the establishment of the Periodic Review Boards, which functioned as a kind of parole system, whereby prisoners could be approved for release if they demonstrated to a panel of military and intelligence officials that they were contrite, and that they had plans for a constructive post-release life.
As a result of the PRBs, which ended up applying not just to the “forever prisoners,” but also to many of those initially recommended for prosecution by the task force, as the legitimacy of the military commissions collapsed in a number of court rulings, 38 men were recommended for release by the PRBs, and 36 of them were freed before Obama left office (the other three men still held who were approved for release under Obama were actually approved for release by the 2009 task force).
The Periodic Review Boards under Trump
Since the start of Trump’s presidency, although the PRB process still exists, it has failed to deliver a single recommendation for release, and seems to be doing nothing more than simply going through the motions. It may be that this is because the remaining 26 prisoners in the PRB system are genuinely regarded as still constituting a threat to the US, or it could be because of the changing political context — from Obama, who was using the PRBs as a way to bypass Congressional obstacles to the release of prisoners, and to inch towards his promise to close the prison, to Trump, who wants to keep it open, and has no interest in releasing anyone.
Last year, I wrote about the first PRBs that had taken place under Trump — some file reviews, purely desk-based reviews every six months, and full reviews, where the prisoners get to go before a panel of officials (by video link) to make a case for their release. These were supposed to take place every three years, but under Obama they had tended to be every one or two years, with some even taking place at shorter notice. I wrote about these reviews in two articles last May, Under Trump, Periodic Review Boards Continue at Guantánamo, But At A Glacial Pace and Review Boards Approve Ongoing Imprisonment of Saifullah Paracha, Guantánamo’s Oldest Prisoner, and Two Others.
In the full reviews, three men had ended up having their ongoing imprisonment approved — alleged al-Qaeda facilitator Sharqawi Abdu Ali Al Hajj (ISN 1457), the Pakistani businessman Saifullah Paracha (ISN 1094), and Haroon al-Afghani (ISN 3148), a hapless Afghan who had only recently secured legal representation — while a fourth man, Omar Muhammad Ali al-Rammah (ISN 1017), a Yemeni seized in Georgia, against whom the US seemed to have no case, was awaiting a verdict after his review in February 2017.
Over a year since I last wrote about the PRBs, the board members have still not made a decision in al-Rammah’s case, as Jessica Schulberg recently explained in an article for the Huffington Post, stating, “The Pentagon declined to say why it is taking so long to make a decision in Al-Rammah’s case. But the lengthy delay indicates a disagreement between government officials over whether the Yemeni should be cleared for release.”
Schulberg proceeded to explain that, although the panel members — “senior officials from the departments of Defense, Homeland Security, Justice and State; the Joint Staff; and the Office of the Director of National Intelligence” — must reach a unanimous decision, “even after they make a decision, their bosses — the heads of those agencies — can object to the decision and request a meeting to reexamine the case,” and can also “request a review within 30 days of the PRB’s decision.” They also “step in if the PRB can’t reach a consensus,” as Sarah Higgins, a Pentagon spokeswoman, told Schulberg in an email. She added, “I can’t share at this time which scenario is holding up the final determination,” and advised that the DoD remains “committed to the PRB process.”
Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, which represents men still held at Guantánamo, told Schulberg that it was “unlikely that the PRB has failed to reach a consensus after 16 months of deliberating.” As he put it, “My speculation is that some of these men have been approved for transfer by the board, there has then been an objection, and the principals committee has not met to resolve that objection — or has met but has not resolved it.”
In the meantime, a new round of full reviews began in January, with the case of Khalid Qasim (ISN 242), a Yemeni, and a prominent artist at Guantánamo, who remains held because the authorities don’t, historically, like his attitude. The board approved his ongoing imprisonment in March, as they did for Abdul Rabbani Abu Rahmah aka Abdul Rahim Ghulam Rabbani (ISN 1460), a Pakistani whose case was reviewed in February, and Uthman Abd al-Rahim Muhammad Uthman (ISN 27), a Yemeni whose case was reviewed in April, with a decision delivered in May.
No decision has yet been taken in the case of Moath Hamza Ahmed Al-Alwi (ISN 28), a Yemeni, and another prominent artist, whose case was reviewed in March, and two more prisoners have recently had their cases reviewed: Abd Al-Salam Al-Hilah (ISN 1463), a Yemeni businessman, on June 19, and Haroon al-Afghani — again — on June 26. Human Rights First covered al-Hilah’s review, the only other media outlet to take any interest whatsoever in the PRBs.
Torture victim Mohammad Mani Ahmad al-Qahtani (ISN 63) is the next to be reviewed, on July 24, and, although no other full reviews are currently listed, it is reasonable to assume that the cases of the rest of the 26 men will be reviewed over the rest of the year and into 2019. Meanwhile, the file reviews also continue, with a big list on the PRB website, but as with the full reviews, it is hard to shake the notion that, under Trump, there is no reason for any panel to stick their neck out and recommend a prisoner for release.
When the boss says — or tweets — that he doesn’t think anyone should be released from Guantánamo, why would a panel of officials invite his scorn by approving the release of anyone tarred as one of “the worst of the worst,” and who, it seems, very few people care about?
The PRBs, I fear, have become a sham — although I would dearly love to be proved wrong, as the sad truth is that amongst the 26 are men who have never had anything whatsoever to do with al-Qaeda or international terrorism, and whose continued imprisonment — because of a perceived bad attitude related to their long imprisonment without charge or trial — makes a mockery of justice.
As Wells Dixon also pointed out, “keeping the PRB system in place, even in its neutered form, gives the Trump administration a nominal defense when critics accuse it of indefinitely detaining prisoners without due process,” as Jessica Schulberg described it.
Dixon said, “It is the only thing that the government can point to to show that there is any sort of review that is occurring at Guantánamo. It is what the government hangs its hat on to fight off habeas claims,” like the one currently being reviewed in a US court, which was brought on behalf of eleven prisoners. He added, “It is a meaningless process for all practical purposes.”
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.
Who's still at Guantánamo?
18 Responses
Andy Worthington says...
When I posted this on Facebook, I wrote:
Here’s my latest article, looking at the state of play in Guantanamo’s Periodic Review Boards – the parole-type process that President Obama initiated for 64 men dubbed “forever prisoners” in the media – men regarded as too dangerous to release, but against whom insufficient evidence existed to put them on trial. Under Obama, 38 of these men were approved for release, and 36 were freed, but under Trump not a single one of the 26 remaining prisoners eligible for PRBs has been approved for release.
Is that a coincidence or a reflection of the very different priorities of the Obama and Trump administrations, going from a president who was moving towards closing the prison, to one who revels in keeping it open? It’s hard to say, but the problem now is that, although the PRBs seem to have become useless, their existence enables Trump to claim that a legitimate review process exists, so that he can’t be criticized for holding prisoners indefinitely without charge or trial.
...on June 28th, 2018 at 8:20 pm
Andy Worthington says...
When Deborah Emin shared this, she wrote:
Please read and share. Another powerfully important piece by Andy Worthington.
...on June 28th, 2018 at 9:12 pm
Andy Worthington says...
Thanks for sharing, Deborah – and for your very supportive words!
...on June 28th, 2018 at 9:13 pm
Andy Worthington says...
Tashi Farmilo-Marouf wrote:
THIS month, in a secret drill, prison guards practiced for something that hasn’t happened at Guantánamo in a decade: receiving a new war-on-terror detainee.
https://thecrimereport.org/2018/06/20/will-trump-send-isis-detainees-to-guantanamo/
...on June 28th, 2018 at 9:14 pm
Andy Worthington says...
Tashi Farmilo-Marouf wrote:
A new dining hall for guards at the Guantanamo Bay detention centre has a shimmering view of the Caribbean and a lifespan of 20 years. Barracks scheduled to start getting built next year are meant to last five decades. And the Pentagon has asked Congress to approve money for a new super-max prison unit to be designed with the understanding that prisoners will grow old and frail in custody — some perhaps still without being convicted of a crime.
https://www.ctvnews.ca/world/u-s-military-plans-as-if-guantanamo-won-t-close-for-decades-1.3963871
...on June 28th, 2018 at 9:15 pm
Andy Worthington says...
Thanks for the depressing links, Tashi. I do still think no one new will get sent to Guantanamo, because it removes them from any realistic ability to deal with them in terms of the law, and if we’re talking terrorists, then we’re talking criminals, not “warriors.” But I wouldn’t ever trust a vile crap bag like Donald Trump not to do the wrong thing.
...on June 28th, 2018 at 9:15 pm
Andy Worthington says...
Jeremy Varon wrote:
I am feeling very pessimistic. Trump is on a tyrant jag just now, no doubt feels emboldened by SCOTUS decision. And if the guys in question are two of “the Beatles” it will be difficult to garner any sympathy for them (which isn’t really the issue of course). He has frozen out Mattis, doesn’t listen to anyone.
...on June 28th, 2018 at 9:16 pm
Andy Worthington says...
I’m trying to hold back from full-blown depression about it, Jeremy. It would be cataclysmically idiotic to send anyone new to Guantanamo, and I think all but the most unhinged advisers will tell him that. But yes, Trump does seem particular emboldened right now, and the extent of his vileness is genuinely quite shocking.
...on June 28th, 2018 at 9:16 pm
Andy Worthington says...
Mary Shepard wrote:
Trump doesn’t care about the thousands of immigrant children locked into detention camps or farmed out to foster parents (and there are children who are simply lost under the grinding wheels of this nightmarish “policy”), so why should this small, vile, evil man spare even a thought for Guantanamo? Trump hates everyone who isn’t white, and the hatred is doubly fierce for Muslims.
...on June 29th, 2018 at 12:05 am
Andy Worthington says...
Yes, that’s very well put, Mary. So what we must hope is that the bureaucracy is resilient enough to survive his worst intentions. Otherwise government gets eaten away from within and the next thing we know it’s actual fascism.
...on June 29th, 2018 at 12:06 am
Tom says...
What do these detainees and innocent immigrant kids have? Being held in cages. Torture. Lifetime PTSD. Nobody caring about that.
...on June 29th, 2018 at 1:47 am
Andy Worthington says...
Exactly, Tom. It is a profound shame.
...on June 29th, 2018 at 10:03 am
arcticredriver says...
Thanks Andy. Your coverage of these historic abuses is very valuable.
I looked for the recent link where I read something interesting, and I can’t find it. I thought it was at lawfare, but I couldn’t find it.
The recent article commented on how long it had taken to publish the documents from a PRB held last year. It claimed the 9 months was the longest any PRB had gone, from the hearing to publication, which it attributed to the conclusion getting bucked up to the “principals” -ie the cabinet Secretaries, like Mattis.
The recommendations have to be unanimous. The meetings are between delegated subordinates of the Secretaries, where the CSRT were Colonels, Naval Captains, Lieutenant Colonels and Commanders — more junior. The author suggested all the subordinates had eventually agreed to some releases, only to be countermanded by one or more of the cabinet Secretaries.
...on July 2nd, 2018 at 5:54 pm
arcticredriver says...
Andy, Donald Trump keeps surprising us, when we thought nothing he could say would shock us again.
Last week he said that the refugee claimants who tried to enter the USA should be deported without any due process, no chance to consult a lawyer, no chance to appeal.
I am shocked by him, and shocked by the smarty-pants commentators who can’t understand him. A month or so ago Canada hosted the G7. Trump arrived late, left early, and slept in so the breakfast meeting had to restart.
Following his departure Justin Trudeau made a comment on the Trump administrations incoherent and very aggressive statements about Canadian bad faith, and its imposition of new tariffs. Most people thought his comment was restrained, but it included saying something like, “Canadians would not be pushed around.”
The Trump a administration reacted with outrage. Trump used this as an excuse to claw back his signature from the G7’s agreement from the meeting. One of Trump’s deputies said “there was a special place in Hell” for Trudeau.
Trudeau, his Ministers and spokespersons, and smarty-pants commentators voiced confusion as to how Trump could feel outraged by Trudeau’s comment, when it was merely a restating of a position he had articulated something like half a dozen times over the previous month.
This confusion only makes sense if one believes that Trump has surrounded himself by an honest and competent staff, and that he allows this honest and competent staff to regularly give him honest and competent briefings.
I very strongly suspect Trump’s reaction is that he had not been aware of the previous times Trudeau had stated Canada’s position.
I suspect that Trump’s shocking positions come from two reasons: (1) “art of the deal” posturing — where he thinks he has a better bargaining position if the other parties think he is mercurial and unpredictable; (2) genuine shocking ignorance. As a rich guy he has been surrounded by yes-men, for decades, so his world-view is seriously distorted. Being surrounded by yes-men he thinks he is a genius, when he is far from a genius.
...on July 2nd, 2018 at 6:17 pm
arcticredriver says...
I am sympathetic to the families of those families the ICE Police has imprisoned, and whose children have been stripped away. It is enormously inhumane, and many Americans are shocked.
The same kind of shock should have been appropriate when the Bush administration treated a couple of dozen youths as adults in Guantanamo. I think we can assume something like 5 to 10 percent of the individuals held in Bagram were also minors.
ICE may have separated more children, and some of them were mere toddlers, but they didn’t suspend any from the ceiling, for days, as happened to every captive entering Bagram, even children.
So, it wasn’t just Trump.
...on July 2nd, 2018 at 6:23 pm
Andy Worthington says...
Good to hear from you, arcticredriver.
I don’t recall having seen the article you mention, but I’m sure you’re right about the reasons for the delay.
...on July 3rd, 2018 at 10:55 am
Andy Worthington says...
Thanks for your thoughts, arcticredriver. Trump is such a nightmare. I think you’re absolutely right about his colossal ignorance, and what also alarms me as his horrible presidency continues is getting confirmation about how fixated he is with certain issues, and how completely inflexible he is. Everything he said on the campaign trail reflects his obsessions – and, of course, many of those positions are disgustingly racist (regarding the Muslim ban, Mexican immigrants etc.), while others reveal an obsession with the US and its relationship with other countries: his damaging obsession with tariffs, for example, and his relentless banging on about other NATO members not paying enough, which I saw he was plugging away at yet again just the other day.
...on July 3rd, 2018 at 11:02 am
Andy Worthington says...
A valid point, arcticredriver. I’ve been appalled at the “rehabilitation” of George W. Bush, which took place soon after Trump’s presidency began, because, as you note, the torture and abuse of prisoners – even children – in the “war on terror” is completely unforgivable. It is not acceptable for anyone to brush that aside, and it makes some wonder if it’s not, at some level, a largely unspoken collective effort to rewrite history so that, although bad things were done, the understanding needs to be that everyone was under a lot of pressure, because America had been attacked in an unprecedented manner, and because the US leadership expected a second attack.
That said, there is something new and horrible about the overt racism with which Trump is committed to efforts to shut down America as a nation of immigrants, which needs to be resisted as widely as possible.
...on July 3rd, 2018 at 11:12 am