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Who Are The Two ‘Forever Prisoners’ Approved For Release From Guantánamo By Periodic Review Boards? – OpEd

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In extraordinary news from Guantánamo, two more “forever prisoners” — the Yemeni tribal leader Abdulsalam al-Hela, 53, and Sharqawi al-Hajj, 47, another Yemeni, and a long-term hunger striker — have been approved for release by Periodic Review Boards, the parole-type system established under President Obama, to add to the three approved for release in May.

Eleven of the 40 men still held have now been approved for release — the five under Biden, one under Trump, the only two of the 38 men approved for release by the PRBs under Obama who didn’t manage to escape the prison before he left office, and three other men, still languishing in Guantánamo despite being approved for release by Obama’s first review process, the Guantánamo Review Task Force, in 2010.

No one who cares about the need for Guantánamo to be closed should be in any doubt about the significance of these decisions.

Both men arrived at Guantánamo from CIA “black sites” in September 2004, and were both regarded as being of significance when the Guantánamo Review Task Force published its report about what President Obama should do with the 240 prisoners he inherited from George W. Bush in January 2010. At that time, as was finally revealed when the Task Force’s “Dispositions” were released in June 2013, Sharqawi al-Hajj was one of 36 men “[r]eferred for prosecution,” while al-Hela was one of 48 others recommended for “[c]ontinued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war, subject to further review by the Principals prior to the detainee’s transfer to a detention facility in the United States.”

To establish some historical context, this was when Obama still hoped to close Guantánamo, but only by moving those “[r]eferred for prosecution” and those recommended for “[c]ontinued detention” — 84 men in total — to the US mainland, a plan that was scuppered by Congress, which enacted legislation, still renewed every year, preventing the president from establishing a facility to replace Guantánamo on US soil. Moreover, when the PRBs began in 2014, they included not only those recommended for “[c]ontinued detention,” but also many of those initially “[r]eferred for prosecution,” as the credibility of the military commissions collapsed after several appeals concluded that the US had been prosecuting people for “war crimes” that had actually been invented by Congress. Plans to prosecute al-Hajj were dropped at this time.

Two of the three men approved for release last month had also arrived at Guantánamo in September 2004 after being held in CIA “black sites” — Saifullah Paracha and Abdul Rahim Ghulam Rabbani — and had also been “[r]eferred for prosecution” (until those plans were also dropped in 2014), while the third man, Uthman Abd al-Rahim Uthman, had not been held by the CIA, and had also been approved for “[c]ontinued detention.”

However, whereas all five decisions are significant because of the length of time that the US authorities regarded these men as ineligible for release — revealing a noticeable change in position by the Biden administration from all his predecessors, including Obama — doubts had long been expressed about the significance of Saifullah Paracha, and assessments of Rabbani had suggested that he was nothing more than “a simple man,” as his lawyers explained, but until last week the US authorities had steadfastly refused to back down when it came to the purported significance of Abdulsalam al-Hela and Sharqawi al-Haj.

Abdulsalam al-Hela

Abdulsalam al-Hela, a Yemeni tribal leader and businessman, was working for the Yemeni government when he was kidnapped in Egypt in September 2002, on a business trip. After somewhere between 590 and 599 days in CIA “black sites,” he was transferred to Guantánamo, where the case against him ossified into an apparently unshakeable belief that he “was a prominent extremist facilitator who used his position within the Yemeni Political Security Organization to provide refuge and logistical support to al-Qa’ida and other extremist groups,” as the detainee profile for his most recent PRB explained.

Al-Hela’s first PRB took place in May 2016, and led to a recommendation for his ongoing imprisonment a month later. A second review took place in June 2018, and a decision to continue holding him followed a month later. For his most recent review, in March this year, his personal representative, a military representative appointed to liaise with him, provided a ringing endorsement of him as a God-fearing man who “never had any intention to harm the United States, its allies, or then people of Western democracies.” His attorney, Beth Jacob, also spoke on his behalf, although her testimony was not included in the PRB’s publicly released documents. However, Jacob spoke powerfully about him at his PRB in 2018, and I can only imagine that what she said then — and presumably reiterated in March — contributed significantly to the decision to approve him for release.

Having met with al-Hela at Guantánamo on numerous occasions, and having also spoken to him regularly on the phone, she explained that what he wants above all is to be reunited with his surviving family members — his wife, and his daughter, who was a baby at the time of his capture, but is now “of marrying age” (she has since got married). His two young sons died in a tragic accident during his imprisonment, and his mother and one of his brothers have also died. As Jacob explained, “These tragedies plus the passage of time have intensified his desire to be with his family, when and wherever he is transferred.” Jacob also spoke about how, after release, he wants only “to devote himself to his family to make up for the long years away from his wife and daughter,” and has mentioned “maybe buying a small building and renting the space to raise the income to support himself and his family.”

This is a far cry from the wealth to which al-Hela was accustomed before his capture,  when he lived “a luxurious life, in a large house with servants,” as a result of being “a natural entrepreneur” from a “well-to-do” family, who began with “construction deals and selling cars when he was still in school,” and then moved on to establish a pharmaceutical company, and to being involved in “development projects that could involve millions of dollars, arranging deals for oil exploration, electric generating, housing projects and the like.”

Because some of his work “involved acting as an intermediary with the government,” and because he had political ambitions and was well-connected as a tribal leader to 10,000 people, he and other Sheikhs were asked by the government to assist with the problem of Arab fighters who had fought against the Soviet Union in the late ‘80s, and had then come to Yemen, “where they lived under the protection of some of the tribes.” As Beth Jacob described it, “The United States asked Yemen to expel these foreigners, and Yemen itself also wanted to deport them,” and al-Hela and other prominent tribal leaders “were asked to convince the Sheikhs for the tribes where these Arab Afghans were living to allow the men to be deported.”

Beth Jacob included letters from prominent Yemeni officials explaining that he was acting for the government, and that he did not have “any connection with any terrorist or extremist organizations and the Yemeni State insures that entirely,” and as she also explained, some of the documents submitted on his behalf “indicat[e] the favors given to him and trust placed in him by President Saleh himself.” As she added, “At that time, Yemen and the United States were allies in the fight against terrorism and extremist organizations,” and so al-Hela’s “actions benefited the United States.”

As she also explained, “Abdul Salam lived openly. He was prosperous, had a family, thriving businesses, an influential public position as a leader of his tribe, and the prospect of a promising political career. He was moderately religious but not an extremist. Photographs of him taken before he was thrown into prison show a man in a business suit, with close-cropped hair and a short beard. He was ambitious for political success. He was proud of his position as head of his family and head of his tribe. He loved his country. The accusations against him make no sense.”

The accusations against him have never made sense, and it is reassuring that, finally, this has been recognized by the US authorities.

Sharqawi al-Hajj

Sharqawi al-Hajj, meanwhile, sometimes identified by his captors as “Riyadh the Facilitator,” was seized with 16 other men in a house raid in Karachi, Pakistan on February 7, 2002, but whereas the others were transferred to Guantánamo (and have since been freed), he was sent to be tortured in Jordan, where he was persistently asked to identify people in photo albums that were shown to him, and then spent between 123 and 129 days in CIA “black sites,” before his eventual transfer to Guantánamo, where the US authorities described him as “a career jihadist who was closely tied to several senior al-Qa’ida members, including Usama bin Ladin and Khalid Shaykh Muhammad, and acted as a prominent financial and travel facilitator for al-Qa’ida operations,” while conceding, however, that “he may not have had foreknowledge of the plots.”

Al-Haj’s first PRB took place in March 2016, and led to a recommendation for his ongoing imprisonment a month later. A second review took place in February 2017, leading to another recommendation for his ongoing imprisonment, and a third took place in February 2019, which be boycotted, along with many other prisoners disillusioned by the failure of the PRBs under Donald Trump to recommend anyone for release. Again, a decision to continue holding him followed a month later.

In the meantime, as his lawyers at the Center for Constitutional Rights explained in August 2019, he “stated on a recent call with his attorney that he wanted to take his own life,” which CCR described as “follow[ing] a steady and observable deterioration of his physical and mental health that his legal team has been raising the alarm about for two years,” and, soon after, “cut his wrists with a piece of glass” while on another call with his lawyer, stating that he was “sorry for doing this but they treat us like animals,” and adding, “I am not human in their eyes.” In March 2020, he harmed himself again.

For his most recent review, in April this year, his attorney Pardiss Kebriaei, who has been representing him since 2015, spoke eloquently about his mental health issues, and, regarding his proposals for life after Guantánamo if he were to be recommended for release, urged the Board to consider the statement he made in 2017, which still “holds true.” As she put it, “As he stated then, he is not the same person he was in his 20s, and has no interest in behavior that may result in more deprivation. He wants to be away from violence and negative influences, and is convinced that fighting and wars are futile. He never married and wants to. He has participated in classes during his detention and, for example, has English language skills that could serve him in future work. He understands that he would not be returned to Yemen, as does his family, and in fact does not want to return so long as there is conflict. He would accept resettlement in any safe third country.”

Elsewhere in her statement, Kebriaei referred extensively to his mental health issues, noting that, although he “participated earnestly” in the PRB process in 2016 and 2017, and again for a purely administrative file review in early 2018, he “began to withdraw from the PRB process only later in 2018, at a time when it was becoming relatively clear there would be no transfers from Guantánamo under the former [Trump] administration”, and, she added, “I first began reporting hopeless and increasingly suicidal statements by Mr. Al Hajj, which escalated over 2019 and 2020 into actual incidents of self-harm.”

Pardiss Kebriaei’s submission for al-Hajj’s PRB included statements from Katherine Porterfield, a psychologist, as well as the Center for Victims of Torture and Physicians for Human Rights, all expressing grave concerns about how inadequately the authorities at Guantánamo were dealing with his suicidal state of mind. As Kebriaei explained, his suicide attempts have been “alongside repeated hospitalization after prolonged periods of hunger striking, as well as longstanding issues of chronic pain and jaundice-related symptoms of weakness and fatigue that exacerbate his overall condition.” She added, “From the vantage point of his attorneys, Mr, Al Hajj’s detention over the last two and a half years has appeared increasingly like a revolving door of hospitalization, Behavioural Health Unit observation, and disciplinary status for behavior likely relating to his condition, with routine memos by his counsel to JTF-GTMO reporting specific threats of imminent self-harm. The picture has appeared untenable and worsening. As Dr. Porterfield states, his mental functioning will likely continue to worsen under the status quo, to the point of possible irreparable harm.”

She added, “While the government has argued in the context of Mr. Al Hajj’s habeas case that his behavior is motivated by a desire to achieve a change in his conditions and not end his life, as Dr. Porterfield explains, suicide attempts can have multiple motivations and still result in death or severe injury.” As she also stated, “Medical care has at times been accepted by Mr. Al Hajj, who has had positive relationships with some of his providers and spoken of appreciation of their efforts.” However, “his care at Guantánamo has not stemmed his mental deterioration, and likely cannot, if its cause is inextricably linked to his environment.”

Turning to the possible conditions of his departure from Guantánamo, Kebriaei noted that, “Upon release, Mr. Al Hajj would need medical and psychological support, but he would also have other critical core support. While his parents passed away in recent years, his mother just last year, his siblings, all working with families of their own, have submitted a statement for consideration by the Board stating their ability and willingness to offer emotional and financial support to Mr. Al Hajj after his release. CCR would also remain involved, as we have with numerous other resettled clients, from Uruguay to Portugal to Oman, where we have provided wide-ranging support, from liaising with in-country authorities and services to problem-solve and address needs, to providing laptops and foreign-language learning materials to assist with reintegration.”

In conclusion, Kebriaei asked the board “to strictly evaluate whether Mr. Al Hajj’s continuing detention remains necessary and humane after 19 years,” and to “ultimately recommend his transfer to a safe country with appropriate support.”

As with Abdulsalam al-Hela, that recommendation has now, finally, materialized. In both cases, the Boards noted that each man “presents some level of threat in light of his past activities and associations,” but concluded that those risks were mitigated — in al-Hela’s case, through his “lack of training and lack of a leadership role in extremist organizations”, his “candid responses to the Board’s questions regarding his pre-detention actions,” his “credible statements regarding his strong desire to return to his family,” and also his “realistic post-transfer plan and the lack of indication that [he] harbors extremist beliefs or intentions to reengage.” In al-Hajj’s case, the Board considered his “desire to be candid,” his “age at the time of his pre-detention activities and having matured since entering detention,” his “efforts to take advantage of educational activities at Guantánamo, information regarding family and CCR support available to assist [him] if he is transferred,” and also that he “does not currently demonstrate an extremist mindset or appear to be driven to reengage by extremist ideology.”

The pressing need to appoint a Special Envoy for Guantánamo Closure

The next step, of course, is for the Biden administration to actually release these men, and the others approved for release, for which it is imperative that a new Special Envoy for Guantánamo Closure is appointed. For the Yemenis in particular, negotiations are necessary to secure a third country for their release, because of the long-standing refusal of the entire US establishment to consider repatriations to Yemen itself, for security reasons. In al-Hela’s case, the Board recommended “resettlement to a country with family reunification, reintegration support, and the capacity to implement appropriate security measures,” while for al-Hajj they recommended “[r]obust security measures to include monitoring and travel restrictions, [and] resettlement in a country with a strong established rehabilitation program and reintegration plan for transferred detainees.”

I hope we will be hearing soon about the appointment of a Special Envoy, followed swiftly by the release of prisoners, but as al-Hela’s case is also about to be challenged in court, with his lawyers seeking to overturn a ruling last September that he is not entitled to the protections of due process in his habeas corpus proceedings, it is no surprise that Beth Jacob told the New York Times that “his team would continue to fight that decision because a court release order carries more weight than a review board recommendation to arrange a transfer.”

PRB decisions, in fact, carry no legal weight whatsoever, and are purely administrative, but nearly 20 years after Guantánamo opened, it is very much to be hoped that President Biden recognizes how unjust it would be to approve prisoners for release through the PRBs and then not proceed swiftly with their release.

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Andy Worthington

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to his RSS feed (he can also be found on Facebook and Twitter). Also see his definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate his work, feel free to make a donation.

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