Guantánamo Scandal: Eleven Men Were Set to Be Freed Last October, Until “Political Optics” Shifted After Hamas’ Attack on Israel

22.5.24

The eleven Yemeni prisoners who were supposed to be resettled in Oman in October 2023. Top row, from L to R: Moath Al-Alwi, Khaled Qassim, Toffiq Al-Bihani, Hani Saleh Rashid Abdullah, Uthman Abd Al-Rahim Muhammad Uthman. Middle row: Sharqawi Al-Hajj, Abdulsalam Al-Hela, Sanad Al-Kazimi, Suhayl Al-Sharabi, Zakaria Al-Baidany. Bottom row: Hassan Bin Attash.

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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.

Thanks to NBC News, and the four anonymous US government officials who spoke to them, for exposing the latest scandal involving the US prison at Guantánamo Bay — the refusal of the Biden administration to release eleven men, for whom long months of negotiation had secured a safe and viable resettlement option, because of the perceived “political optics” of freeing them after the attacks on Israel by Hamas and other militants on October 7.

Within Guantánamo circles, this scandal was well known, but attorneys for the men had been subjected to a Protective Order issued by the government, preventing them from talking about it, and, as a result, they had all dutifully kept quiet, as had others, like myself, who had got to know about it.

Their silence is, in itself, an indictment of how the US government operates at Guantánamo, as I also recognised when I refused to publicize it, because of the fundamentally lawless situation in which these men are held.

It’s crucial to understand that the decisions that were taken to release these men — made unanimously by high-level US government review processes — were purely administrative, and completely outside the US legal system.

This not only prevents the men and their attorneys from being able to appeal to a court if the government fails to release them; it also, more crucially, means that they are essentially prisoners of the executive branch, and that, therefore, criticizing the executive runs the risk of endangering their release.

If you’re reading this, I hope you recognize quite how grotesque this situation is — that men unanimously approved for release from Guantánamo cannot seek their release through the courts, because the decision to release them rests solely with the executive branch, and that, if senior officials fail to prioritize their release, there is nothing that anyone can do about it; there is no court to appeal to, and no way of even publicly criticizing the government’s inaction, because doing so risks the wrath of the handful of powerful men — President Biden and his senior officials — who hold the keys to the jail.

The predicament the prisoners and their lawyers face disgracefully confirms that, despite having been open for over 22 years, Guantánamo is as fundamentally lawless now as it was when the prison first opened.

A brief history of Guantánamo’s persistent lawlessness

When Guantánamo was first established, in January 2002, the Bush administration declared that the men and boys it had rounded up and sent there had no rights whatsoever as human beings.

Long years of legal struggles eventually secured habeas corpus rights for the prisoners, and led to 32 men having their release ordered between 2008 and 2010 after District Court judges examined their cases, and ruled that the government had failed to establish that they had any meaningful connection to Al-Qaeda, the Taliban or associated forces.

This period, from 2008 to 2010, was the only time that the law had any meaning for the men held at Guantánamo. Sadly and shamefully, it came to an end when politically motivated appeals court judges rewrote the rules governing the habeas cases, in particular by requiring the lower court judges to regard everything submitted as “evidence” by the US government — however risible — as “presumptively accurate,” making it almost impossible for the lower courts to continue to order the release of prisoners.

Since the summer of 2010, only one habeas corpus petition has been granted by the courts, and, as the law was shut down, administrative reviews took over instead — Obama’s Guantánamo Review Task Force, which, in 2009, reviewed the cases of the 240 men inherited from George W. Bush, and recommended two-thirds of them for release (all but three of whom were eventually freed), and the Periodic Review Boards (PRBs), established in 2013, an ongoing parole-type process that led to an additional 38 men being approved for release in Obama’s second term in office.

All but two of these men were freed before Obama’s presidency came to an end, and, after the horrors of Donald Trump’s four years as commander in chief, when Guantánamo was fundamentally sealed shut, Periodic Review Boards under Joe Biden once more began approving release for the majority of the men whose ongoing imprisonment without charge or trial had been previously upheld by the PRBs.

The eleven men who were supposed to be released in October are amongst 16 men in total (over half of the 30 men still held at the prison) who have been approved for release by the PRBs (and in three cases by the earlier Guantánamo Review Task Force). I have been focusing on their stories for the last 16 months — through posters, updated every month, showing quite how long they have been held since the decisions were taken to release them, and, between February and April this year, in a series of ten articles published on the Close Guantánamo website and on my website here.

Every month these tallies become ever more shocking. As of today, May 22, these 16 men have been held for between 607 and 1,301 days since they were approved for release, and, in the three outlying cases based on the deliberations of the Guantánamo Review Task Force, for 5,234 days.

The NBC News story

In NBC News’ story, none of the above was mentioned. The journalists who wrote it — and their editors — either didn’t know or didn’t care that these men are as fundamentally without rights as they were when Guantánamo opened — or that they are essentially prisoners of the president and his senior officials.

These are major journalistic failings, but we must at least be grateful that they have finally brought this shocking story to light.

As they describe it, the eleven men “are either citizens of Yemen or have ties to the country,” according to the officials, and “were scheduled to be resettled in Oman,” located on the south eastern coast of the Arabian peninsula, just to the north of Yemen, which successfully resettled 28 Yemeni prisoners between January 2015 and January 2017. The reason that Yemenis need resettling in third countries is because of provisions inserted by Republicans into the annual National Defense Authorization Act, which prevent the repatriation of prisoners to proscribed countries including Yemen, Libya and Somalia.

According to NBC News’ sources, officials — presumably led by former ambassador Tina Kaidanow, who was appointed as the Special Representative for Guantánamo Affairs in August 2021, and is “responsible for all matters pertaining to the transfer of detainees from the Guantánamo Bay facility to third countries” — “spent months negotiating the terms for the detainees to be transferred to Oman, including measures intended to guarantee the men wouldn’t become a security threat and any possible compensation they would receive.”

“Compensation,” I should note, is highly unlikely, as the US government has never offered any kind of compensation to former prisoners, refusing, ever, to acknowledge any kind of wrongdoing on their part. It is more probable, therefore, that the reference in NBC News’ article was to whatever money the US would provide to Oman to support the resettlements, as arranged via strictly confidential “diplomatic assurances.”

The sources added that the planned release of the men in October “was imminent when it was called off at the last minute,” as the administration had “already notified Congress that the transfer would take place,” a requirement that Congress imposed on the executive branch under President Obama, requiring the administration, by law, to provide Congress with 30 days’ notice prior to the release of any prisoners.

Several of the officials who spoke to NBC News said that “the decision to stop the transfer was not related to any concerns raised by Oman or last-minute disagreements between the US and Oman.” Instead, they expressed their belief that “it was the result of members of Congress, primarily Democrats close to the president, privately raising concerns about the timing” — the “political optics after Hamas’ attack on Israel,” as NBC News described it.

The officials’ decision to speak out came about because, although Republican administrations seem to have completely lost touch with any sense of outrage about their own government’s actions, Democratic administrations still harbor some individuals who care about flagrant and ongoing abuses of justice like Guantánamo.

They explained that, more than seven months since the planned release was abandoned, “the administration has not set a new date for the transfer,” and “the detainees remain at Guantánamo with no clarity on when, or if, it will happen.”

The officials said they were “concerned” that “the likelihood that the transfer takes place before November’s presidential election diminishes the closer the election gets,” and feared that, if Donald Trump is re-elected in November, the eleven men “will remain at the detention facility for at least another four years.”

The officials also explained that they were worried that “the stalled process” that has left these men “sitting in detention for months without clarity about when they could be transferred could become a human rights concern” — although, on that latter point, every administration that has been in charge of Guantánamo has shown little or no concern for human rights criticisms, and the Biden administration is no exception, as was shown last year when they essentially blanked high-level and damning criticisms of the prison’s operations that were submitted by United Nations Special Mandate holders.

In a report issued last June, Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, concluded, after becoming the first ever UN Rapporteur to visit the prison in February, that, despite some improvement in conditions over the years, the prison’s operations overall constitute “ongoing cruel, inhuman, and degrading treatment,” and “may also meet the legal threshold for torture.” Two other devastating opinions were issued by the Working Group on Arbitrary Detention, one of which indicated that the very basis of the detention system at Guantánamo “may constitute crimes against humanity.”

According to the officials, the deal for the transfer of the eleven Yemenis “is still under discussion with Oman, including about specific timing and conditions.” They added that “it could happen this year,” although they were all clearly concerned that the importance of freeing these men has fallen off President Biden’s radar.

One senior administration official, perhaps seeking to provide cover for the president, suggested that Oman “has at times since October not wanted the transfer to take place,” although they stressed that the cases were not “collecting dust somewhere,” adding that the administration was “actively looking at all those administrative steps to make it happen,” while acknowledging that “there are frustrations.”

Pressure is needed to prioritize these men’s release

All of us who care about Guantánamo — and the desperate need for these men to be freed from what has become their unforgivably long executive imprisonment — need to put pressure on President Biden and the Secretary of State, Antony Blinken, to overcome their “political optics” problem, to re-energize the transfer process for these eleven men, and also to commit resources to finding homes for the five other men who have long been approved for release, but who are not part of the Oman deal — a Tunisian and a stateless Rohingya who have been refusing, since 2010, to deal with the authorities regarding their release, a Kenyan whose government apparently doesn’t want him back, and a Somali and a Libyan.

In addition, it should be noted that, by refusing to free these eleven men because of “political optics” regarding Hamas’ attacks on Israel, the Biden administration has, lamentably, slipped into an all too familiar pattern of casual Islamophobia, whereby all Muslims, whether Palestinians in the Gaza Strip, or Yemenis at Guantánamo, are allowed to be perceived as terrorists.

In Gaza, this refusal has led to the deaths of tens of thousands of Palestinian civilians, with barely a murmur of dissent from the administration, and at Guantánamo it has, not for the first time, led to men without rights becoming political playthings, as though it means nothing that they have never been charged with a crime, that high-level US government review processes have concluded unanimously that it is safe to release them, and that they are, fundamentally, the personal prisoners of just two men — President Biden and Antony Blinken.

They need to be freed.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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 (see the ongoing 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 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 you can watch it online here, via the production company Spectacle, for £2.50).

In 2017, Andy became very involved in housing issues. He is the narrator of the 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 2017 that killed over 70 people, and, in 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to try to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody.

Since 2019, Andy has become increasingly involved in environmental activism, recognizing that climate change poses an unprecedented threat to life on earth, and that the window for change — requiring a severe reduction in the emission of all greenhouse gases, and the dismantling of our suicidal global capitalist system — is rapidly shrinking, as tipping points are reached that are occurring much quicker than even pessimistic climate scientists expected. You can read his articles about the climate crisis here.

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Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

6 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, an unapologetic condemnation of the Biden administration for stopping the release from Guantanamo, in October, of eleven men who have long been approved for release. The men were supposed to be resettled in Oman, but the deal was pulled at the last minute, as a result of what NBC News, which broke the story, based on the accounts of four administration officials, called the “political optics after Hamas’ attack on Israel.”

    These men, all Yemenis, who were unanimously approved for release by high-level US government review processes between 607 and 1,301 days ago — and, in one case, 5,234 days ago — cannot even challenge the outrageous politicized decision to cancel their release, because the decisions taken to free them in the first place were purely administrative, meaning that they are completely outside the US legal system.

    With no ability to ask a judge to order their release, these men, held for the most part for over 20 years without charge or trial, have no idea if they will ever be freed, as that decision is dependant on the whims of two men in particular — President Biden and Antony Blinken — who wield absolutely power over their lives, just as George W. Bush did when he first opened Guantanamo over 22 years ago.

  2. Andy Worthington says...

    For the New York Times, Carol Rosenberg provides some scraps of additional information about the cancelled resettlement flight, stating, “A military cargo plane was already on the runway at Guantanamo Bay ready to airlift the group of Yemeni prisoners to Oman when the trip was called off, people familiar with the military operation said. Belongings they could take with them had been collected, signaling to the prisoners that they would soon be going. Then the plane flew away empty, and their belongings were returned.”

    Officials who spoke to Rosenberg confirmed that, although “US diplomatic and national security officials reached an agreement with Oman to send the prisoners there last year”, the plan “ran into opposition during a closed briefing in Congress in October, virtually on the eve of the transfer”, when, as NBC News reported, “Democrats raised concerns with State Department and intelligence officials about the potential for instability in the Middle East in the aftermath of the Hamas attack on Israel.”

    Rosenberg also noted that lawyers for the cleared prisoners “have declined to comment on the aborted transfer, or to discuss the mood in Guantanamo’s minimum-security Camp 6 facility, where the men who have been approved for release are segregated from so-called high-value detainees” — the 13 men, out of the 30 still held, who are held in the isolation cells of Camp 5, previously used to segregate prisoners regarded as troublesome from the general prison population.

    What she might have added is that a Protective Order, issued by the government, has prevented the men’s attorneys from speaking about the cancellation of their release, and it is not known, as yet, how, or if the story becoming public will affect this situation.

    https://www.nytimes.com/2024/05/21/us/politics/guantanamo-hamas-israel-oman.html

  3. Andy Worthington says...

    One of the eleven men at Guantanamo whose resettlement in Oman was abruptly cancelled in October – when the plane that was meant to carry them to freedom was ready to take off – is the talented artist Khaled Qassim, held for 22 years without charge or trial, and approved for release 674 days ago. Here’s ‘Forever Prisoner’, my song about him, recorded with The Four Fathers.
    https://thefourfathers.bandcamp.com/track/forever-prisoner

    And check out my article about Khaled, which features some of his artwork, published in March to mark 600 days since his approval for release, as part of my recent series of ten articles about the 16 men approved for release but still held: https://www.andyworthington.co.uk/2024/03/13/held-for-600-days-since-being-approved-for-release-from-guantanamo-khaled-qassim-a-talented-artist/

  4. Andy Worthington says...

    Another of the eleven men whose resettlement in Oman was abruptly cancelled in October is the talented artist Moath Al-Alwi, whose sailing ships, made out of recycled materials, are widely and justly admired. As of today, Moath has been approved for release for 878 days.

    Check out my article about Moath – including photos of his work – from my recent series of 10 articles about the 16 men approved for release but still held, published in March to mark 800 days since his approval for release, along with 2 others including Zakaria al-Baidany, who was also supposed to have been freed: https://www.andyworthington.co.uk/2024/03/06/held-for-800-days-since-being-approved-for-release-from-guantanamo-moath-al-alwi-zakaria-al-baidany-and-mohammed-abdul-malik-bajabu/

  5. Andy Worthington says...

    Ethan Winters wrote:

    You knew about the deal before it was made public? Wow! I wish I had your connections. No wonder you kept mentioning Biden and Blinken in the series about the 16 men. I hope the 11 Yemenis get transferred before January 20. When the election is over, Biden won’t have an excuse to not transfer them.

    Plus, he also has to transfer Abd al-Hadi al-Iraqi this year. Anyway, the Oman deal technically hasn’t been canceled so I do have some hope. Biden is not Trump. I think he will free the Yemenis at some point. It’s good to see that Tawfiq Bihani is included in the Oman deal. Why he wasn’t transferred in 2016 is a mystery to me. However, like you I don’t think the Tunisian and Rohingya will ever be freed. If the Somali and Libyan get transferred, it will probably be to a country that is not proscribed in Africa. I’m not sure what’s going to happen to the Kenyan.

  6. Andy Worthington says...

    Good to hear from you, Ethan, and thanks for your comments.

    All quiet on the al-Hadi front. I’m sure there are people in the administration who know about the importance of respecting plea deals, but I find it hard to imagine him being freed without some serious schmoozing of a willing country from the very top of government.

    He’ll need lifelong care. Who’s going to want to do that without some serious favours being involved?

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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