Over Half Of Guantánamo’s Prisoners Have Now Been Approved For Release – OpEd
In more good news from Guantánamo, Ghassan al-Sharbi, a 47-year old Saudi who has been held at the prison for nearly 20 years, has been approved for release by a Periodic Review Board, a parole-type process established by President Obama. His approval for release means that the US government has now accepted that over half of the men held — 20 of the 39 men still imprisoned — should be freed, with 15 of those decisions taking place since President Biden took office just over a year ago.
It has been a long journey to reach the point where a panel of US officials — from the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff — has approved al-Sharbi for release.
Al-Sharbi was captured on March 28, 2002, with several other men who ended up at Guantánamo (most of whom have already been released), in a house raid in Faisalabad, Pakistan that also secured the capture of Abu Zubaydah, for whom the US torture program was subsequently developed.
In Guantánamo, during George W. Bush’s first term, when his administration began fishing around for prisoners to be put forward to trials by military commission, al-Sharbi was one of ten men charged (in November 2005), and seemed, on the face of it, to be a suitable candidate for prosecution.
As the US authorities described it, he “had graduated with a bachelor’s degree in Avionic Electrical Engineering from Embry-Riddle Aeronautical University in Prescott, Arizona” in 2000, was fluent in English, and had also allegedly “attended a US flight school where he associated with two 9/11 hijackers.” All of the above would have been sufficient for him to be regarded as someone connected with planned attacks in the US, and I can only imagine how badly he was treated, and how relentlessly he was interrogated, in his early years at Guantánamo.
When it came to the charges against him back in 2005, it was alleged that he and three other prisoners were part of an Al-Qaeda bomb-making cell. As the US authorities described it, he “constructed electric circuitry in Pakistan for improvised explosive devices (IEDs) to attack Coalition Forces.”
Al-Sharbi responded both through resistance — he insisted on representing himself, rather than accepting representation by US defense lawyers — and also, seemingly, by simultaneously playing into the US government’s hands. At a pre-trial hearing in April 2006, he told the judge, “I fought the United States, I’m going to make it short and easy for you guys: I’m proud of what I did.”
Despite this apparent confession, the charges against al-Sharbi evaporated just two months later when the Supreme Court, in Hamdan v. Rumsfeld, ruled that the military commissions were unlawful. Congress, however, revived the commissions just three months later, and in May 2008 al-Sharbi was charged again (with two other men) with providing material support for terrorism and conspiracy. By October 2006, however, the charges were dropped again, as a little-remembered scandal engulfed the commissions, when a prosecutor, Lt. Col. Darrel Vandeveld, resigned, accusing the architects of the commissions of creating a system designed to prevent the disclosure of evidence essential to the defense.
Vandeveld’s resignation was specifically in connection with the case of Mohamed Jawad, an Afghan, and a former child prisoner, who as I explained at the time, was “alleged to have thrown as grenade at a jeep containing two US soldiers and an Afghan translator.” However, Vandeveld “discovered that the defendant was just 16 or 17 years old at the time of the attack, and, moreover, that evidence indicating that he was drugged before the attack, and that two other men confessed to the crime, had been deliberately suppressed.”
Vandeveld, however, was not just a prosecutor in Jawad’s case; he was also part of the case against al-Sharbi and four others, and, as I also explained, the authorities “were so concerned that he would again testify for the defense in [the] five other cases for which he was responsible — revealing, quite possibly, more extraordinary tales of suppressed evidence and incriminating documents stumbled upon by mistake — that they dropped all the charges against these prisoners on October 21.”
Of particular interest, in hindsight, is the role played in these cases by presumably unreliable evidence extracted from Abu Zubaydah, during the long years in which he was tortured, which, included being subjected to waterboarding, an ancient form of water torture, on 83 separate occasions.
Astonishingly, al-Sharbi was charged again, in the dying days of the Bush administration, but the case was dropped when President Obama took office, and under Obama he became, instead, one of 64 men eligible for Periodic Review Boards, the parole-type process that has finally approved him for release.
Ghassan al-Sharbi and the Periodic Review Boards
In June 2016, however, when his first PRB took place, al-Sharbi (identified by the US authorities as Abdullah al-Sharbi) continued his resistance by refusing to engage with the process, guaranteeing that the board members would approve his ongoing imprisonment. Under Donald Trump, he again refused to engage with his second PRB hearing, although by that point non-compliance was routine amongst the prisoners, who had correctly concluded that, under Trump, the entire process had become a sham.
Given all of the above, it could appear surprising that al-Sharbi has finally been approved for release, but as Carol Rosenberg noted for the New York Times, he has “apparently mellowed in recent years.”
Rosenberg quoted Sabrina P. Shroff, a federal public defender who has been representing al-Sharbi in his habeas corpus case in the District Court in Washington, D.C. for the last year. Shroff wrote to the board, for his latest hearing, on December 7, 2021, stating her belief that al-Sharbi “did not pose a threat to the national security of the United States,” as the Times described it. In her submission, she wrote, “He has no animus. [He] has frequently said that he has to look forward and the best way to look forward is with clear eyes, and an open and pure heart.”
She also stated that she was “so confident of his goodness” that she would “welcome him in my home,” and gave him her address in New York City, although, as Rosenberg noted, “That is not currently possible because former Guantánamo detainees are forbidden to enter the United States.”
At his hearing two months ago, his Personal Representative (a military official assigned to represent prisoners in their PRBs) noted that he “was adamant about being present for this important opportunity,” and also noted that, over the long years of his imprisonment — when, for many years, he was a persistent hunger striker — his health has “deteriorated, making it difficult for him to move and painful to travel for meetings and phone calls.” However, in the last year he “has started working with the medical staff at the Camp in an effort to improve his mobility and overall health.”
As the Personal Representative also noted, al-Sharbi “worked through the pain to attend our first meeting,” even though “the physical discomfort he was in was in was evident,” adding, “I have been impressed over the last few months seeing the great effort he made to attend all the meetings I scheduled to prepare for this board.”
The Personal Representative also recognized that “Ghassan knows that the board has questions about his mindset and his hopes for the future,” and assured the board members that “he is here today to answer those questions,” adding, “I believe that, with a little assistance navigating the job market or enrolling in continued education, Ghassan has the capacity to flourish wherever he is sent.”
Al-Sharbi’s own statements have not been made publicly available, but in their “Final Determination,” on February 4, the board members clearly concluded that his cooperation justified approving him for release. They noted his “lack of leadership or facilitator position in al-Qaeda or the Taliban” and “the efficacy of rehabilitation programs and measures they can take to mitigate any future threat,” as well as al-Sharbi’s “improved record of compliance in detention,” his “engagement in the PRB process to include attending all meetings set by the Personal Representative,” and his “engagement with medical staff to improve his physical and mental health issues.” They also recommended “[i]mplementation of comprehensive set of security measures including monitoring, travel restrictions and continued information sharing.”
The need for the men cleared for release to be freed
With al-Sharbi’s approval for release putting the US government in a position where it has now accepted that over half of the remaining Guantánamo prisoners should be freed, the rationale for the prison’s continued existence looks thinner than ever before. Of course, we need, above all, to see progress on actual releasing some of these men, but imagine Republican opponents of Guantánamo’s proposed closure trying to cope with the fact that, if all of these men are freed, it will cost over 25 million dollars a year to hold each of the remaining prisoners.
As a way of moving towards the closure of Guantánamo without attracting Republican hysteria, it seems to me that President Biden has chosen a wise route — although it should be noted that using an administrative process (the PRBs) rather than the courts doesn’t properly address the legal quagmire created at Guantánamo, and it should also be noted Republican opposition is not what it used to be, largely because of the end of the war of Afghanistan.
That said, Carol Rosenberg noted ripples of Republican hysteria regarding the recent decision by a PRB to approve the repatriation of Mohammed al-Qahtani, who was tortured at Guantánamo over his alleged role as the intended 20th hijacker for the 9/11 attacks, but whose schizophrenia, predating attempts by Al-Qaeda to recruit him, is too severe to be treated at Guantánamo.
Carol Rosenberg noted that, “Last Friday, according to people familiar with the process, the Pentagon notified Congress that Defense Secretary Lloyd J. Austin III had signed off on Saudi guarantees for security arrangements upon Mr. Qahtani’s return,” a certification that, as a result of Republican agitation during the Obama presidency, is required by law 30 days before any prisoner is released. Rosenberg added that, although “[t]he initial reaction to the decision was muted,” last Monday Representative Mike D. Rogers of Alabama, the senior Republican on the House Armed Services Committee, responded to the plans to transfer al-Qahtani for rehabilitation in Saudi Arabia by accusing the Biden administration of “an appalling capitulation to the far left.”
This may play well with the rump of rabid pro-Guantánamo Republicans, but in the real world al-Qahtani’s long struggle to be released from US custody because of his profound and deep-seated mental health issues is in accordance with both the Geneva Conventions and US military law, and judges have recognized that in a number of rulings in recent years. In opposing al-Qahtani’s release, Rogers looks less like a patriot than an oaf with contempt for the law, and it is very much to be hoped that, as some of the men approved for release are freed, Republicans will recognize the need to remain silent, and not to try to justify the continued existence of a prison where, after 20 years, its fundamental lawlessness still remains, a place where the US has insisted that it has the right to hold, possibly forever, men who have never been charged with a crime.
