Guantánamo: Two Malaysians Convicted of Terrorism Repatriated to Serve Out the Rest of Their Sentences; 18 Men Never Charged Are Still Held

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After 20 intensely irritating months of inaction, the Biden administration is — finally, belatedly — making up for lost time, releasing prisoners from Guantánamo, ending the second longest period in the prisons’s long and sordid history that no prisoners have been freed.

The good news began yesterday, when the Pentagon announced that Mohammed Abdul Malik Bajabu, the prison’s sole Kenyan prisoner, and one of 16 men long approved for release by high-level US government review processes, had been repatriated, as I reported here. Bajabu arrived at Guantánamo nearly 18 years ago, in March 2007, after brief and brutal stays in secret US prisons in Djibouti and at Bagram airbase, and had been held without charge or trial at Guantánamo ever since.

Almost exactly three years ago, in December 2021, he was approved for release by a Periodic Review Board, a parole-type process introduced by President Obama in 2013, but like the 15 other men long approved for release, that decision had not led to any enthusiasm on the part of the authorities to actually free him, in large part because the review processes were and are purely administrative, meaning that no legal mechanism exists to compel the government to release these men if they find it complicated or inconvenient to do so.

Today came further good news, as the Pentagon announced that two other men, Mohammed Farik bin Amin and Mohammed Nazir bin Lep, the prison’s only Malaysian prisoners, had been repatriated to serve out the rest of their sentences for involvement in terrorism, under the alleged leadership of Encep Nurjaman (aka Hambali), an Indonesian also held at Guantánamo. Their release had been agreed as part of plea deal in January 2024, which I wrote about here.

As the Pentagon stated, both men had “pled guilty before a Military Commission to multiple offenses, including Murder in Violation of the Law of War, Intentionally Causing Serious Bodily Injury, Conspiracy, and Destruction of Property in Violation of the Law of War,” and had been freed “pursuant to a pretrial agreement between the US and the two men,” in which each of them had “cooperated with the US Government” and had “provided deposition testimony available for use against the alleged mastermind, Encep Nurjaman, of the al-Qaida-affiliated attacks on nightclubs in Bali, Indonesia in 2002, and the attack on the J.W. Marriott Hotel in Jakarta, Indonesia in 2003.”

As the Pentagon added, “On June 13, 2024, in accordance with the pretrial agreements, the Convening Authority approved sentences of confinement for approximately five years for each and recommended that both men be repatriated or transferred to a third-party sovereign nation to serve the remainder of the approved sentence” — that “third-party sovereign nation” now revealed as their home country.

As Carol Rosenberg described it for the New York Times, “They were returned to the custody of the Malaysian government, and supervision of its de-radicalization program, through a diplomatic arrangement that was reached as part of their guilty pleas in January.”

Both men were held and tortured in CIA “black sites” for three years before their transfer to Guantánamo in September 2006 as “high-value detainees”, along with 12 other HVDs including Hambali, five men accused of involvement in the 9/11 attacks, and six others.

Made eligible for the PRBs, their cases were reviewed in 2016, when their military representatives, assigned to represent them, told the board members that bin Amin, who was “a very complaint detainee”, had “expressed regret and sorrow talking about his past,” and “believed he made stupid, hasty decisions, largely attributed to his young age and narrow view of the world.” Bin Lep, meanwhile, also described as “a highly-compliant detainee,” told his representatives that he was “not a threat to America,” and that “his mindset ha[d] changed, since the time before his capture”, adding that he had said that, “If he were released, he would say good-bye to his old life, because he feels that he has lost so much since he has been detained (his parents, an older sister and friends).”

Despite this, the men’s ongoing imprisonment without charge or trial was approved by the PRBs, although in January 2021, just before President Biden took office, the Pentagon surprised everyone by charging both men, and Hambali, in the military commission trial system. In August 2021, they were finally arraigned, when Brian Bouffard, one of bin Lep’s lawyers, complained that “it’s almost 20 years later, witnesses have died, [and] the landscape has changed dramatically,” adding, “In my view, it’s fatal to the ability to have a fair trial.”

By January 2024, the government seemed to have recognized the accuracy of Brian Bouffard’s words. Although Hambali remains in pre-trial hearings, bin Amin and bin Lep agreed to plea deals, admitting that they had helped Hambali “transfer money for operations, and obtain and store items such as fraudulent identification documents, weapons and instructions on how to make bombs”, and providing information for the case against Hambali in exchange for sentences of around five years, as agreed by the commission’s’ convening authority, as opposed to the 23-year sentence recommended by the military jury.

While the overall amount of time served by both men since their capture — and including their future time in Malaysia’s de-radicalization program — corresponds to the type of sentences that they would have received in federal court had they been arrested, charged and held unmolested, Brian Bouffard pointed out how disgraceful it was that, instead of following this legal route, the US had, instead, tortured his client for three years.

He said that Mohammed bin Lep “plans to live a quiet life with his family”, adding, “He’s been punished many times over for his long-ago involvement with the wrong people, and we hope one day that his torturers and their enablers might face accountability for the evil they have done in our name.”

Christine Funk, meanwhile, one of bin Amin’s lawyers, said he “looks forward to the opportunity to continue living a life of purpose, taking care of his parents and pursuing a career that best reflects his skills and talents.”

The urgent need to free the Guantánamo 15

Guantánamo now holds just 27 men, the lowest number since its opening days back in January 2002, but while the release of bin Amin and bin Lep is appropriate, it also shines a light on the fact that two-thirds of the men still held — 18 men in total — have never been charged with a crime, and yet are still waiting to be freed.

We don’t, as yet, know if the release of some, or most of these men is imminent, but anyone concerned with justice must hope that it is. As was made clear in the Pentagon’s press releases yesterday and today, the defense secretary, Lloyd Austin, notified Congress on November 14 of his intention to repatriate these three men, fulfilling a long-standing requirement, introduced by Congressional Republicans during Obama’s presidency, to provide Congress with 30 days’ notice before any prisoners are freed.

It is very much to be hoped that, just as we didn’t know about these notifications, we also don’t know about any other notifications that have taken place since.

This is hugely important because, despite there being no legal obligation to free men approved for release, the administration has a moral responsibility, in particular, to free the 15 men who, like Mohammed Abdul Malik Bajabu, have long been approved for release — for between two and four years, and in three outlying cases for nearly 15 years.

The situation these men find themselves in is complicated by the fact that most of them — again because of Congressional Republican interference — cannot be repatriated, based on provisions approved every year in the annual National Defense Authorization Act that prevent the return of prisoners to certain proscribed countries, including Yemen, where most of the 15 are from.

However, 14 months ago these men were meant to be resettled in Oman, a plan that was cancelled by the administration while a plane was on the runway at Guantánamo. This was because of what were regarded by senior administration officials as the negative “political optics” of freeing men from Guantánamo after the attacks in southern Israel on October 7, 2023.

No new date was set for the resettlement of these men, but 14 months is long enough for the administration to have either renegotiated a resettlement plan with Oman, or to have secured the cooperation of another country prepared to offer these men a new home. Any failure to do so will make a mockery of the entire process of approving prisoners for release, suggesting, instead, that it is merely an option, and that there is no moral stain involved in an administrative process that approves men for release without any compunction to actually free them.

For three other men never charged, it is too late for a solution before Biden leaves office and Trump takes over, sealing the prison shut as he did in his first four years in charge. These three men — Abu Zubaydah, Abu Faraj al-Libi and Muhammad Rahim — have all been repeatedly approved for ongoing imprisonment without charge or trial by the PRBs, and are, with some accuracy, known as the “forever prisoners.”

Their fate will involve ongoing wrangling with the tortuous multi-departmental mechanisms governing Guantánamo, along with the still-unresolved cases of most of the other men who have been charged with crimes in the military commissions.

For the 15 men approved for release, however, the choice facing the Biden administration is stark. Once also known as “forever prisoners”, these men were promised freedom. If it fails to materialize, and they return to four years of entombment as “forever prisoners” under Donald Trump, this rank injustice will poison whatever small moves Joe Biden has made towards justice at Guantánamo during his four years in office.

For their sake, and his, I hope we will hear soon that these men — or, at the very least, a majority of them — have also been freed, resettled where they can, finally, look forward to picking up the pieces of their shattered lives.

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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), the 196 prisoners released from February 2009 to January 2017 by President Obama, the one prisoner released by Donald Trump, and the eleven prisoners released by President Biden from July 2021 to April 2023, as well as yesterday, 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; May 2018 — 1 Saudi to continued imprisonment in Saudi Arabia; July 2021 — 1 Moroccan; March 2022 — 1 Saudi (Mohammed al-Qahtani); April 2022 — 1 Algerian; June 2022 — 1 Afghan; October 2022 — 1 Pakistani (Saifullah Paracha); February 2023 — 1 Pakistani to Belize (Majid Khan); 2 Pakistanis; March 2023 — 1 Saudi; April 2023 — 1 Algerian; December 2024 — 1 Kenyan.

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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.

To receive new articles in your inbox, please subscribe to Andy’s new Substack account, set up in November 2024, where he’ll be sending out a weekly newsletter, or his 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.

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