I recently published an article about the most recent Periodic Review Board to take place at Guantánamo, and I was reminded of how I’ve overlooked a couple of interesting articles about the PRBs published in the Guardian over the last six weeks.
When it comes to President Obama’s intention to close Guantánamo before he leaves office next January, the most crucial focus for his administration needs to be the Periodic Review Boards, featuring representatives of the Departments of State, Defense, Justice and Homeland Security, and the offices of the Director of National Intelligence and Joint Chiefs of Staff, as I have been highlighting through the recently launched Countdown to Close Guantánamo. Of the 91 men still held, 34 have been approved for release, and ten are undergoing trials (or have already been through the trial process), leaving 47 others in a disturbing limbo.
Half these men were, alarmingly, described as “too dangerous to release” by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in 2009, even though the task force acknowledged that insufficient evidence existed to put them on trial.
What this means, of course, that it cannot legitimately be regarded as evidence at all, but should, more accurately, be regarded as unreliable information produced mainly through the interrogations of the prisoners themselves, when the use of torture, abuse and bribery were widespread.
And in reviewing the cases of the men described as “too dangerous to release,” it has indeed become apparent that this is a damaging and inaccurate description. 20 men have had decisions made following their reviews, and in 17 cases — 85% of the total — the review boards have recommended them for release.
However, it has taken over two years to get to this point, and 40 other men are still awaiting reviews. Half of these men were described as “too dangerous to release,” while the other half consists of men who were recommended for military commission trials until the basis for the trials collapsed under scrutiny by appeals court judges (on the basis that the war crimes prosecuted had actually been invented by Congress).
Unless the PRB process is speeded up, however, it is clear that many of these 40 men will not have had their cases reviewed by the time President Obama leaves office, even though, when he issued an executive order approving the detention of the men deemed “too dangerous to release” in March 2011, he promised that the reviews would be completed within a year.
Moreover, for President Obama to succeed in closing Guantánamo before he leaves office, he must find a way to transfer everyone still held to the US mainland, except those approved for release, and it would be helpful for that number to be as small as possible. The larger the number, the more conservative critics will howl about the spectral dangers posed by the men being moved to US soil, and the more liberal critics will complain about indefinite detention without charge or trial being enshrined on the US mainland (a legitimate fear, although one that I am convinced will open up new opportunities for them to challenge the basis of their detention in the courts, as is my “Close Guantánamo” colleague, Tom Wilner).
At present, for example, just four men are awaiting PRBs, which will be taking place over the next month. However, no further PRBs have been announced, even though four will need to take place every month if all the reviews are to be completed before Obama leaves office.
On December 26, the Guardian addressed some of the problems with the PRBs in an article entitled, “Guantánamo Bay lawyers call bluff on Obama’s promise to close prison.”
In that article, Ed Pilkington pointed out that, despite President Obama “stepp[ing] up the rhetoric, promising to redouble efforts to close the prison while also heavily criticising the Republican-controlled Congress for blocking moves to transfer prisoners out of the prison to the US mainland,” and the release of 16 men in January, “attorneys at the sharp end of representing the detainees are protesting that though the pace is being picked up in reviewing cases, it remains too sluggish to meet the January 2017 deadline.” Pilkington added that the lawyers “see Obama’s criticism of Congress as a smokescreen to obscure the fact that a primary source of the current inertia lies not on Capitol Hill but within his own administration.”
Pardiss Kebriaei, a senior attorney with the Center for Constitutional Rights, said, “There are signs of progress, but at the current pace the administration will not get through all the detainees and give them a proper chance of transfer by the time Obama steps down.”
Pilkington noted that lawyers were reporting that “the review boards are now being convened more rapidly,” but, as I mentioned above, it is far from clear that they will take place quickly enough for everyone eligible to have had their cases reviewed by the time Obama leaves office. The “current stasis,” as Pilkington described it, leaves the 36 men who currently have not yet received a date for their PRBs “in the Kafkaesque position of not yet even having been given their initial review under the PRB system, a broken promise under the letter of Obama’s executive order that has nothing to do with Congress.”
Lawyers for the prisoners told the Guardian that, as Pilkington put it, “such a glacial pace of activity can only be explained by lack of political will within the White House or resistance from senior officials within the administration” — and this latter point was explored in detail in “Pentagon thwarts Obama’s effort to close Guantánamo,” an article for Reuters, by Charles Levinson and David Rohde, that was published just after the Guardian‘s article (see here for my analysis of the Reuters article).
One of the lawyers who spoke openly of his disappointment with the Obama administration was Gary Thompson, based in Washington, D.C., who represents Ravil Mingazov, an ethnic Tatar from the former Soviet Union, who is one of the 36 men who have not yet had dates given for their PRBs.
Mingazov, who left his homeland because of religious persecution, had his habeas corpus petition granted in May 2010, but that successful petition was appealed by Justice Department lawyers. As Pilkington described it in an article last November examining Mingazov’s current efforts to to rejoin his family — his 15-year-old son Yusef and former wife Dilyara — who were granted political asylum in the UK last year, and who live in Nottingham with other relatives of Mingazov’s, “Despite Obama’s declared intention to close the prison, it was officials from his own administration who appealed the ruling and persuaded the DC circuit court of appeals to impose a stay on the order. That stay remains in place today with no sign of activity on behalf of government officials to try and lift it.”
Gary Thompson told the Guardian, “It’s a joke. The Obama administration set up the PRB process when it suited their political needs, to give them political cover, then did nothing about it.”
Thompson added that, as the Guardian described it, “the experience of the PRBs had soured his view of Obama’s frequently repeated pledge to close the military prison,” and meant that “he now treats any announcement by the White House on Guantánamo with deep suspicion.” As he said, “It’s just the government’s next administrative joke — the next Alice in Wonderland procedure that will prove to be as hollow as those that came earlier.”
Ed Pilkington also explained how, at times, “the failure to move ahead with cases has astonished even those used to the Kafkaesque conditions of Guantánamo,” citing Mari Newman and Darold Killmer, the lawyers for Musa’ab al-Madhwani, a Yemeni who narrowly had his habeas corpus petition turned down in December 2009. As the Guardian described it, his lawyers were told, “every time they inquired about the status of his PRB hearing,” that “his file had not yet been assembled and therefore no official has been assigned to him and no PRB hearing had been scheduled.” The Guardian added, “This was almost five years after the PRB system was ordered by Obama and more than 13 years after [al-Madhwani] arrived at the prison.”
Clive Stafford Smith, the founder of Reprieve, which represents six men still held at Guantánamo, told the Guardian that the system “was so sluggish that official correspondence with the Obama administration regularly fell by the wayside.” He explained that “over the past 18 months he has written at least five official legal letters asking for an initial PRB hearing for his client Ahmad Rabbani — all of them receiving no reply.”
Stafford Smith pierced to the heart of the problem with the PRBs. “It’s impossible to understand why they don’t hold a PRB every single day,” he said. “They have dozens of military lawyers there, but they aren’t being used. That suggests to me that the Obama administration has made an active decision not to do what it promised to do.”
Rabbani, who was a taxi driver in Karachi, is one of ten prisoners sent to Guantánamo in September 2004 after being held in “black sites”. As Ed Pilkington described it, “The US Senate intelligence committee report on CIA torture revealed that Rabbani was arrested in a case of mistaken identity – he had been assumed to be the wanted al-Qaida member Hassan Gul [aka Hassan Ghul].”
Pilkington also noted that Rabbani “is a prolific writer from his prison cell and has described his despair over the lack of progress on his request for a PRB hearing.” In a letter to Clive Stafford Smith, he wrote:
President Obama promised to close the prison years ago. He formed the PRB and all individual countries agreed to receive their nationals. But months and months have passed, the number of people who have been released through the PRB can be counted on two hands. It’s so incredibly slow. How long will it take for me?
I ask the American people to search for the truth, for the truth of the continuous existence of the prison at Guantánamo. I ask the American people, who claim to protect human rights, to practice what they preach — for where is equality and justice and democracy?
The Guardian also cited the case of Mohammed al-Qahtani, alleged to be the intended 20th hijacker for the 9/11 attacks, whose torture was openly admitted by a senior Pentagon official in January 2009, in the only case in which torture at Guantánamo has been admitted.
Al-Qahtani went on a hunger strike “to protest at the lack of any progress on his PRB,” and his attorney, Ramzi Kassem, a law professor at the City University of New York, said that his client had still “not been granted a date for his first review hearing,” and had “not even been assigned a personal representative who deals with the organisational aspects of the process.”
Ramzi Kassem explained, “All he wants is what he’s entitled to under Obama’s own process. That’s why he went on hunger strike — not to ask for release but because he wants a PRB date. And yet there’s been total silence, he hasn’t even been given a tentative hearing date.”
Ed Pilkington noted that “[t]he full story of precisely why the blockage has occurred and who is responsible has yet to be told.” He added, however, that details that emerging last year in individual cases, including that of Shaker Aamer, released in October, “indicated that resistance high up in the Pentagon has been a consistent problem,” the same problem identified by Reuters at the end of last year. Pilkington also noted that the previous defense secretary Chuck Hagel and the current defense secretary Ashton Carter, who have to sign off on any prisoner releases, as required by Congress, have both “demonstrated their anxiety [about releasing prisoners] in the context of a new wave of anti-US extremism from Isis and al-Qaida-linked groups.”
David Remes, based in Washington, D.C., who represents a number of Yemeni prisoners, including the first two men given PRB hearings, told the Guardian that “he saw the Department of Defense as the most immoveable part of the US government.” Remes said, “DoD is fighting a rearguard action against PRBs and against prisoner transfers. It’s a very powerful bureaucracy.”
However, Ed Pilkington also made the point that it is not only the Pentagon that “has acted as a drag on closure,” because the Justice Department “has played its part too, using its authority to foil the release of prisoners that have been ordered by federal courts under habeas petitions.” I have complained about this in previous articles — see here, for example — including in the case of Tariq Ba Odah, mentioned in the Guardian article. A Yemeni, who grew up in Saudi Arabia and has been approved for release since 2009, he has been on a hunger strike since 2007, and weighs just 74 pounds.
While the Reuters article revealed that the Pentagon had obstructed the release of medical records in his case, putting off a country that was planning to offer him a new home, Justice Department lawyers have also played a major role in obstructing his release, fighting in federal court to stop a judge from ordering the government to release him because of the threat to his life of further force-feeding through a habeas corpus petition. As Pardiss Kebriaei said, “It’s entirely inconsistent to fight in court the detainees who the administration itself cleared six years ago. That’s the administration shooting itself in the foot, not Congress.”
On the 14th anniversary of the opening of Guantánamo, Spencer Ackerman added an update for the Guardian, noting that, although the PRB process was “supposed to be a crucial part of Barack Obama’s plan to close Guantánamo Bay,” it transpired that “frustrated officials” concluded that the PRB process “contains a major flaw which allows the process to grind almost to a halt.”
As Ackerman stated, “Even after the agency representatives on the panel decide a detainee’s fate, a month-long review process begins, which allows the agency chiefs an opportunity to overrule their subordinates and prevent a detainee from going free.” He added that officials had told him that “[e]ven if no one registers an objection … the 30-day holding pattern persists, freezing into place the complex machinery of getting a detainee out of Guantánamo Bay,” even though, “[u]sually … the PRB representatives reach a determination on a detainee rapidly, often on the very day the board holds a hearing to evaluate” his case.
Ackerman added that “the delay period allows bureaucrats to slow-walk providing their superiors with the results, effectively placing the process in a holding pattern where a decision on a detainee’s fate is hostage to a ‘non-objection’, waiting until the agencies simply indicate that they will not object to a decision.” In practice, officials said, this process “often stretches beyond the month-long wait period, helping explain why PRB decisions drag out for months,” even though, as Ackerman added, the PRB “reaches decisions by consensus, and often even unanimity.”
As Ackerman also noted, “Until the review period ends, even a detainee whom all five PRB members approve for transfer is not formally designated eligible to leave Guantánamo Bay.” He added, “Diplomats cannot begin the often laborious negotiations with foreign governments to find places to send someone.” Furthermore, “veteran negotiators” told him, “The longer the process extends … the more circumstances abroad can change — an election changes governments, an economic downturn preoccupies them, a war destabilizes them — that affect a country’s willingness or ability to take a Guantánamo detainee.”
A spokesman for detention policy in the Pentagon, Commander Gary Ross, said of the 30-day wait, “When the PRB process was created, principals, who approved the PRB procedures, wanted to ensure they were involved in the decisions regarding those detainees at Guantánamo Bay who had not yet been approved for transfer.”
It is not publicly known how often objections have been raised by any of the bosses of those who hold the reviews — James Clapper, John Kerry, Ashton Carter, General Joe Dunford and Jeh Johnson — but an official involved in the processtold Ackerman “it occurs ‘numerous times, on the high end’, providing another venue for subterfuge within a bureaucracy that has at times compounded congressional opposition to closing Guantánamo with its own obstinacy.”
Wells Dixon of the Center for Constitutional Rights told the Guardian, “The non-objection period is just another opportunity for insubordinate defense officials to undermine transfer efforts and run out the clock on closing Guantánamo. It makes absolutely no sense to allow a lengthy period for bureaucrats who don’t support closing Guantánamo to block unanimous inter-agency determinations.”
It would be hard to argue with Wells Dixon’s conclusion, and I hope that, in the very near future, we will see a strenuous effort by the Obama administration to ensure that the 36 men eligible for Periodic Review Boards that have not yet been scheduled will be told that dates have been set before the end of the year.