A Path for Renewing Guantanamo Closure

Five GTMO detainees are currently approved for transfer . Two of those detainees— Abdul Latif Nasser and Sufyian Barhoumi—could easily have been repatriated to Morocco and Algeria, respectively, in February 2017 had the Trump administration not abandoned diplomatic arrangements already made. Three (possibly four) GTMO detainees would likely have been approved for transfer by the Periodic Review Board (PRB) but for political interference during the Trump administration . Although PRB decisions are normally published approximately 30 days after the board meets—and although the Review Committee “shall conduct a review” if the PRB is unable to reach a consensus decision —Omar Muhammad Ali al-Rammah’s has been waiting more than three-and-a-half years for his last PRB decision; Moath Hamza Ahmed al-Alwi has been waiting two-and-a-half years; and Said Salih Said Nashir has been waiting nearly a year. Additionally, Haroon al Afghani’s decision is nearly two months overdue, potentially indicating that the PRB may have approved his transfer but for political interference. One additional detainee, Uthman Abd al-Rahim Muhammad Uthman, is likely to be approved for transfer in the near future. The PRB’s file-review process recently recommended that he receive an additional full review hearing. Historically, when the PRB’s file-review mechanism recommends an additional hearing, the ensuring review results in transfer approval (or likely approval) 56 percent of the time. Seven detainees are currently undergoing pre-trial proceedings before three separate GTMO military commissions: the 9/11 trial, the U.S.S. Cole trial, and the Hadi al-Iraqi (or Nashwan al-Tamir) trial. Six of those men face capital charges; all seven are victims of U.S.-government-sponsored torture. And, although each was arraigned between six and nine years ago, none have yet heard opening arguments, or seen members selected and empaneled. Indeed, the government has yet to produce fundamental discovery like the Senate Select Committee on Intelligence’s Report on Rendition, Detention, and Interrogation. The Office of the Chief Prosecutor has repeatedly tried and failed to charge three additional detainees for the 2002 Bali bombings. Majid Khan pled guilty and began cooperating with the government more than eight-and-a-half years ago . He is finally scheduled to undergo sentencing in May 2021. Ali Hamza al Bahlul, whose sole remaining conviction—for standalone conspiracy—is before the D.C. Circuit on another petition for en banc review, is serving a sentence of uncertain duration. Nineteen (or 18, depending on the outcome of al Afghani’s PRB) men who have been detained for between 12 and nearly 19 years are neither approved for transfer nor face a suggestion of prosecution before a military commission. Several of them are victims of the U.S. government’s Rendition, Detention, and Interrogation program, including at least: Abu Zubaydah, Abu Faraj al Libbi, Muhammad Rahim, and Guleed Dourad. Approximately 15 of them are already described as “low value” by the U.S. government, suggesting that detention at cost of $13 million per year some 15 or more years since capture is impractical at best. Among these low-value detainees is Mohammad Mani Ahmad al-Qahtani, one of the alleged “twentieth hijackers,” whose torture while in Department of Defense custody led then Convening Authority to reject military commission prosecutors’ attempt to try him as a 9/11 co-conspirator; a federal court recently ordered the United States first ever Mixed Medical Commission to review whether he is too mentally ill to be detained as a law-of-war detainee. rescinding Executive Order 13823 to reestablish GTMO closure as the official policy of the United States, which is necessary to direct the bureaucracy and arm U.S. diplomats to that end; assigning responsibility for overseeing the closure policy to a senior member of his administration, preferably within the White House or on the National Security Council staff to ensure the sustained White House engagement on GTMO closure necessary to the policy’s success; immediately either (a) directing principals at the agencies that participate in the PRB to reconsider their positions on the three long overdue PRB decisions; or (b) convening an equally long outstanding Review Committee to resolve the cases in limbo; and promulgating guidance interpreting Executive Order 13567 that, inter alia , clarifies the meaning of “necessary to protect against a significant threat to the security of the United States” and the factors to be considered. In particular, the guidance should establish that “necessary” means “unable to be accomplished without continued detention,” “protect” does not mean “prevent absolutely,” and “significant threat” means not just “some” or “any threat” but “a threat substantially greater than the ordinary threats posed by hostile individuals every day.” Additionally, this interpretive guidance should direct the PRB to favorably consider age, duration of detention, its deleterious impact on physical capacity, its mitigating effects on pre-detention connections to hostile actors, and the current status or existence of the entities to which the detainee was previously associated. It should also direct the PRB to favorably consider credible allegations that the detainee under review was tortured by any agent of the U.S. government or a partner government with American complicity. And it should direct the PRB to discount disciplinary infractions while in detention and the credibility of jailhouse chatter that, while potentially facially threatening, is actually unrealistic upon even cursory examination; thereafter, ordering the PRB to hold new hearings for the 19 or so detainees who are neither yet approved for transfer nor engaged in military commissions proceedings; and making senior administration officials available for foreign government engagement in order to open or during the course of transfer negotiations. immediately resuscitate the detainee repatriation deals with Morocco and Algeria left to gather dust by the Trump administration; begin discussions with appropriate foreign governments concerning the potential repatriation or resettlement of the 19 detainees who are not presently approved for transfer but who may become so; potentially reestablish the GTMO closure infrastructure at the State Department as a matter of expediency. Although reestablishment of the GTMO Closure office should not be necessary to achieve GTMO closure, a State Department office responsible for detainee affairs may prove beneficial in correcting the Trump administration’s apparent failure to monitor earlier detainee transfer agreements and to address issues arising from law-of-war detention in other contexts in which the United States is interested ; and ensure senior State Department officials, including American ambassadors abroad, prioritize and support GTMO closure by appropriately incorporating GTMO closure points into their communications with foreign government officials. ensuring that the defense secretary is actively engaged with GTMO closure and their office is receptive to requests for action from the detainee affairs office within the Office of the undersecretary of defense for policy; providing non-reimbursable air assets to facilitate State Department access to GTMO detainees, as well as foreign government interviews of GTMO detainees in furtherance of detainee transfer negotiations; making Emergency & Expeditionary Expense funds available to support U.S. efforts to transfer GTMO detainees by defraying the security and reintegration costs such transfers impose on receiving states. These costs may include host-government expenses related to security measures, housing, physical and mental healthcare, education or job training, an allowance or stipend, and family reunification. Experience demonstrates that the availability of such funding both encourages foreign partner assistance in resettling former GTMO detainees and promotes the successful, peaceful (re)integration of former GTMO detainees; and establishing the priority/urgency/justification/category of GTMO detainee transfer flights at a level that is sufficiently high to ensure that flights are not delayed unless absolutely necessary. Image: Razor wire tops the fence of the U.S. prison at Guantanamo Bay, also known as “Gitmo” on October 23, 2016 at the U.S. Naval Station at Guantanamo Bay, Cuba. Photo by John Moore/Getty Images

2020-11-17 | Military Commissions, detainee treatment, Guantanamo | English |