Recently, in London, campaigners for the closure of the prison at Guantánamo Bay held a vigil outside the US Embassy, by the River Thames in Nine Elms, at which, using the slogan, “Free the Guantánamo 20,” they highlighted the plight of the 20 men still held at Guantánamo, out of 35 prisoners in total, who have been approved for release by high-level government review processes, but are still held.
As I explained in an article about the vigil, the problem for the men approved for release is that the processes that led to their approval for release — initially, under President Obama, the Guantánamo Review Task Force, and, since 2013, the Periodic Review Boards — are ”purely administrative, and no legal mechanism exists to compel the US government to actually free [them].”
This is a shameful state of affairs, as is apparent from a moment’s reflection about how disgraceful it would be if no legal mechanism existed to compel the government to release people from federal prisons after they had completed their sentences, but at Guantánamo, of course, the men approved for release haven’t even been charged with a crime.
As I also explained in my recent article, it seems sadly true that “the lack of any legal enforcement encourages inertia in the Biden administration,” and inertia has long been a reason why Democrats, when in government, have often spent so much of their time doing nothing about Guantánamo. With the prison weaponized by cynical Republicans, dealing with Guantánamo threatens the Democrats with negative publicity, while the benefits appear largely intangible, because most of the mainstream media and most Americans don’t actually care about Guantánamo.
President Biden recently appointed Tina Kaidanow, a former ambassador and a senior diplomat, as the “Senior Representative for Guantánamo Affairs” in the State Department, who is “responsible for all matters pertaining to the transfer of detainees from the Guantánamo Bay facility to third countries,” and it may be that her appointment contributed to the recent release of Saifullah Paracha, Guantánamo’s oldest prisoner, who was sent home to Pakistan, 17 months after he was approved for release by a Periodic Review Board.
However, Kaidanow’s job title specifically makes reference to transfers to third countries — for men who cannot be safely repatriated, or whose home countries are on a list of proscribed countries for repatriation in legislation enacted by Congress — and that is clearly a much more complicated matter than simply sending men back to their home countries.
Looking at the cases of the 20 men approved for release, at least eight of them (two Algerians, a Kenyan, two more Pakistanis and three Saudis) ought to involve straightforward issues of repatriation, but for at least ten others (eight Yemenis, a Libyan and a Somali) third countries need to be found that will offer them a safe home.
Lawyers act for Guled Hassan Duran
Last week, lawyers at the New York-based Center for Constitutional Rights called on a US court to address the “long-stalled case” of one of these men, their client Guled Hassan Duran (identified by the US authorities as Gouled Hassan Dourad), a Somali seized in Djibouti in 2004 and held in CIA “black sites” as a “high-value detainee” until his transfer to Guantánamo, with 13 other “high-value detainees,” in September 2006, where he has been held, ever since, without charge or trial.
When a Periodic Review Board (a parole-type process established under President Obama) approved his release a year ago, he was the first “high-value detainee” to be approved for release by the PRBs, but, as CCR explained in their press release, he is now asking a federal court judge to intervene on his behalf because of “the inaction of both the courts and the Biden administration.”
As CCR proceeded to explain, “In a motion submitted on his behalf by lawyers from the Center for Constitutional Rights and attorney Sabrina Shroff, Duran requested a conference with the judge to chart a path toward resolution of his case on its merits. In 2016, he filed a habeas petition challenging the factual and legal basis of his indefinite detention, and the parties finished filing motions in April 2021, more than a year and a half ago. Inaction by the court has effectively stayed the case since then.”
Explaining the Kafka-esque situation in which his client finds himself, CCR Senior Staff Attorney Wells Dixon stated, “Courts remain an essential check on indefinite detention at Guantánamo, now approaching twenty-one years [of its existence], while the Biden administration commits policy malpractice by fighting to detain men it no longer wants to detain in a prison it has said should be closed.”
As was shown earlier this year, the courts certainly have a legal role to play that is noticeably missing from the prison’s administrative processes. Last October, Asadullah Haroon Gul, an Afghan prisoner, has his release approved by a PRB, but also became the first prisoner in more than decades to have his habeas corpus petition granted by a US court, and he was freed in June this year.
As CCR also explained, “Adding urgency to Duran’s request is his medical condition. He was hospitalized just two weeks ago for life-threatening intestinal maladies that trace back to before his capture,” while he was actually en route to Sudan “for surgery to repair a wound he suffered when he was a victim of a street robbery.” Despite this, “CIA interrogators denied him medical care — and otherwise abused him — to try to force him to cooperate.”
CCR added that, “As his condition worsens … the doctors at Guantánamo are not equipped to provide adequate care” — and yet, cruelly, that same legislation that prevents Duran from being repatriated also prevents any Guantánamo prisoner from being transferred to the US mainland for any reason, even to receive life-saving medical care that is not available at Guantánamo.
As CCR also explained, although the government stated that it would make “vigorous efforts” to locate a suitable third country for Guled’s resettlement, it “has not done so.”
The motion submitted to the court
In the motion submitted to the court — a “Motion for Status Conference” — Duran requested “an in-person conference to address the way forward toward the expeditious resolution of this habeas case on the merits, including his motion to compel production of discovery that has been pending for more than three years.”
In the motion, his lawyers also explained that the government “did not inform Petitioner’s counsel (or the Court) about the incident [his ’life-threatening intestinal blockage’] until his counsel learned about it separately and then inquired with Respondents’ counsel. Respondents have also since refused to allow Petitioner’s court-appointed medical expert to speak directly with medical officials at Guantánamo, including the Chief Medical Officer, about the incident or Petitioner’s prognosis.”
As the lawyers also explained, “in addition to the extended length of time the discovery issues have been pending, there have been at least two important developments that bear on the scope of the Court’s habeas review and underscore the need for the expeditious resolution of this case on the merits.”
The first of these was Duran’s approval for release by a PRB, and the lack of action following up on it by the government, despite its promise that “vigorous efforts” would be “undertaken to identify a suitable transfer location for [Petitioner] outside the United States, subject to appropriate security and humane treatment assurances.”
The second reason, as the lawyers explained, was because Duran’s “serious, long-term medical problems have recently worsened, and may continue to deteriorate without further, sustained therapeutic care — including perhaps additional surgical interventions — that medical officials at Guantánamo are not equipped to manage adequately.”
As the lawyers added, “To ensure consistent medical treatment, Petitioner must be transferred to a country with the capability to tend to his serious medical issues related to his wound, perhaps for the duration of his life.”
In conclusion, the lawyers noted that, although everyone agrees that Duran “must be promptly transferred from Guantánamo,” that “is not reasonably foreseeable without judicial intervention,” and they urged the judge to grant his long-delayed habeas corpus petition.
It remains to be seen if the court will respond with any sense of urgency.
I wrote the above 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.