Detainees stand during an early morning Islamic prayer at the U.S. military prison for 'enemy combatants' in Guantanamo Bay, Cuba. (photo: John Moore/Getty Images)
Who's
Left at Guantánamo? Fates of Dozens of Prisoners Are Undecided
By Cora Currier and Margot
Williams, The Intercept
10 September 16
The
last Guantánamo detainee to make the case for his release before a panel of
senior administration officials is also the youngest man left at the island
prison.
In a
hearing Thursday of Guantánamo’s Periodic Review Board, Hassan Ali Bin Attash,
a Yemeni who is believed to be about 31 years old, said through representatives
that he was working toward a high school GED diploma and hoped to join
relatives in Saudi Arabia and find a job as a translator.
Attash’s
exact birthdate is uncertain, but he was certainly a young teen in 1997, when
the U.S. military alleges that he pledged allegiance to Osama bin Laden and
began working for senior al Qaeda figures doing everything from bomb-making to
logistics. He was captured in Pakistan in 2002 and spent the next two years being
moved between CIA black-site prisons and interrogations in Afghanistan and
Jordan before landing in Guantánamo in September 2004. While in U.S. custody,
according to his own and other prisoners’ accounts, he was subjected to sleep
deprivation, hung from a bar by his wrists, and threatened with dogs and
electric shocks, among other forms of torture. He was also severely tortured by
the Jordanians.
The military
assessment filed for the board states that in Saudi Arabia, Attash could easily
reconnect with terrorist actors, and that his family is also suspect. Attash’s
older brother Walid bin Attash is one of the five men being tried before the
Guantánamo military commission for the 9/11 attacks.
His
lawyer, David Remes, countered that allegation, saying that he has never heard
the younger Attash express anti-American or extremist views.
“Now a
young man, with a mind of his own, he is no longer under the sway of others and
can make independent decisions,” Remes told the board.
As
with all hearings before the Periodic Review Board — a sort of parole process
for Guantánamo detainees — the proceedings were piped by video from Cuba to
media and other observers in a room at the Pentagon. Attash, who has previously
been seen in photos in an orange jumpsuit with wild hair, appeared as a neatly
groomed young man. Detainees are not allowed to speak during the open portion
of the hearing.
Attash’s
hearing marks the end of a three-year process in which the Obama administration
has reconsidered the cases of many of the last men left at Guantánamo, with the
aim of closing the prison before the president leaves office. As of today, all
of the detainees who were eligible for a Periodic Review Board hearing have had
one.
The
final hearing provides an opportunity to look at the 61 men left in
Guantánamo and what the administration proposes to do with them.
Twenty
men are now approved for transfer to another country. Seven are currently
facing charges at the military commissions, Guantánamo’s war court (this
includes the five accused of plotting the 9/11 attacks). One remaining detainee
has already been convicted by the war court, and two others pleaded guilty.
Another 12, including Hassan Attash, have had their hearing but are still
awaiting the board’s decision.
Nineteen
fall into the intractable category of prisoners who have not been referred for
prosecution, but whom officials believe they cannot safely release. The board
recommended these men for “continued detention under the law of war” — in other
words, slating them for indefinite detention.
“In
the next few months, it will be interesting to see whether the administration
uses all of its powers to release the many men left who are not yet cleared but
who it has no intention of charging,” said Shayana Kadidal, senior managing
attorney at the Center for Constitutional Rights, which represents many
detainees. “That will show whether the president is genuinely committed to
closing the prison or just intends to leave his own unfinished promises for the
next president to resolve.”
The
administration’s effort to classify detainees has evolved over the years. After
Obama’s year-one promise to close Guantánamo, he convened a task force to evaluate the cases of
all the detainees there, recommending them for prosecution, continued
detention, or transfer to another country.
Obama
also established the
Periodic Review Boards (known in Gitmo lingo as PRBs) to regularly evaluate the
situation of each detainee the task force had recommended for detention or
trial, in order to determine whether they still pose a threat to the United
States or if they could be safely released. The board includes representatives
from the departments of Defense, State, Homeland Security, and Justice, as well
as the Joint Chiefs of Staff and the Director of National Intelligence. They
don’t take up the legality of holding the prisoner. Instead, they consider the
intelligence against the detainee, and whether it still holds up, as well as
the detainee’s behavior and activities. They also consider what life after
Guantánamo would look like — family and other support networks, job prospects,
and the stability of their home country.
As
such, the review boards offer a rare glimpse into life at the prison, with
detainees often submitting personal details, reports from vocational or
language classes, or even paintings. Remes, Attash’s lawyer, said that
“when the prison still made such publications as the Washington Post and New
York Times available to detainees, Hassan devoured them.” (A Guantánamo public
affairs officer would not comment on whether those newspapers were allowed but
said that the “intellectual stimulation program” for detainees “includes books,
magazines and puzzles, newspapers, handheld electronic games, movies and
satellite television.”)
The
administration has been criticized for the slow start to the PRB
process; the first hearing didn’t happen until 2013. This year, as the prison’s
population dipped below 100 for
the first time, the pace of the PRBs sped up.
When
someone is cleared for transfer, the
administration has to find a place to resettle him, which is particularly
tricky when his home country isn’t an option (many of the remaining men are
from Yemen, which is currently embroiled in a devastating war).
The
prisoners slated for indefinite detention present a bigger conundrum. Each
prisoner may have his PRB file reviewed every six months, and after three
years (if the regime at Guantánamo continues) he’d be eligible for another
hearing. One detainee is already scheduled for
his second PRB hearing in October.
The
Pentagon says that whatever the
decision of the PRB, the administration can continue to evaluate
“individualized disposition” options, including transfer, prosecution in the
military commissions or by another country, or, should Congress lift the current ban on
bringing Guantánamo inmates to the United States, imprisoning them or trying
them domestically (recent court decisions have limited the types of charges the
military tribunals can bring).
In
other cases, the detainees are unlikely to be tried because the evidence
against them is tainted by torture (already an issue in other military commissions proceedings) or because
there simply isn’t much evidence against them at all, said Kadidal, of the
Center for Constitutional Rights. “Most of these men are in fact not people who
are worthy of prosecution,” he said.
If the
U.S. government continues to assert that it can hold them under the law of
war, Kadidal said, “we can expect continued challenges” in federal court
questioning whether the conflicts justifying the detentions are really still
taking place.
“If
not, continued detention is illegal,” he said.
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