On Tuesday morning, a 34-year-old Yemeni, locked up in the Guantanamo Bay military prison for a third of his life without being charged, was given a chance to argue for his release.
The detainee, Ghaleb Nassar al-Bihani, listened intently to the government’s summary of his case in an air-conditioned trailer on the Cuban military base Tuesday morning. Reporters could observe portions of the proceedings by video in a Defense Department building in Arlington, Va.
Flanked by a civilian lawyer and a Navy officer, the bearded al-Bihani nervously shuffled papers on the desk in front of him as an anonymous government representative told him he had “almost certainly” been a member of al-Qaida, and would re-engage in extremist activities if he were released. His lawyer countered that he was a kitchen aide for the Taliban who never fought in battle and wanted to start a new life in Latin America or Europe.
The parolelike process run by the Periodic Review Board was instituted by President Barack Obama via executive order in 2011 to review Guantanamo prisoners’ cases every three years. But the board did not begin in earnest until last July, after a massive detainee hunger strike caught the attention of the nation and the president. The board’s operation is crucial to the president’s aging campaign promise to shutter the prison which, 12 years after it opened, still holds 154 men. Obama's inability to close the prison thus far is widely considered to be a stain on the his legacy.
Senior officials from the departments of Defense, Homeland Security, Justice and State; the Joint Staff; and the Office of the Director of National Intelligence sit on the board and decide the men’s fates.
A government task force in 2009 labeled 48 Guantanamo prisoners too dangerous to release, but determined there wasn’t enough evidence to charge them with any crime. Some advocates refer to this group as “forever prisoners.” Al-Bihani is one of them, and it is this group that the Periodic Review Board is designed to deal with. Just four cases have been heard so far: al-Bihani’s and those of three other Yemenis.
The military says the purpose of the board is not to determine whether the prisoner was a terrorist in the past — none of the indefinitely detained men have been charged with terrorism or any other crime — but whether they would pose a threat to the United States if released. The prisoners are held as “enemy combatants” under the law of war.
Indeed, the military focused less on what al-Bihani was accused of doing in the past and more on his family’s alleged close ties to extremist groups. The military believes these ties would prompt al-Bihani to wage jihad.
The military argues that al-Bihani has been a “problematic” prisoner for the past 12 years and has “incited” mass protests in Guantanamo. But he wore a khaki detainee uniform, meaning guards consider him a compliant prisoner who can live in lower-security communal cell blocks. He’s now a devotee of yoga, they say, and wants to lead a peaceful life and start a family in Latin America or Europe — far away from his family.
A Navy officer who served as al-Bihani’s “personal representative” in the proceedings said he did not believe the former Taliban cook presented any threat to the United States. (Detainees are assigned military representatives to advocate for them in the hearings; their identities aren’t released.) “I say this as both a war-fighter and as someone who has years of experience performing vulnerability assessments,” the officer said.
Journalists were not allowed to listen to the prisoner’s personal statement, or to any questions the board may have had for him afterwards.
Even if al-Bihani is cleared for release, he would join nearly 80 of his Guantanamo peers who have been cleared for five years or more but still languish in the prison because Congress passed a law preventing them from being transferred to the United States. Other countries stable enough to monitor the detainees do not want them, either. The Obama administration called off the transfer of detainees to Yemen after the attempted plane bombing by a Nigerian man trained in Yemen on Christmas Day in 2010, but recently said they will consider transfers on a case-by-case basis.
The gridlock renders any positive decision from the board somewhat hollow.
“I don’t think anybody’s going to take the [Periodic Review Board] process seriously until some Yemenis start being transferred,” said David Remes, an attorney for a Yemeni man who was cleared for release by the board in November but is no closer to leaving the prison.
“You’ll notice that the 11 men who were transferred between August and December last year — none of them are Yemenis,” he said.
The president appointed two special envoys to search for potential transfer countries last summer, and they've succeeded in transferring a small number of detainees since coming on board.
The White House estimated the price tag is more than $1 million per detainee each year to keep the camps running. Guantanamo leadership told Yahoo News during a trip to the prison in January that much of the camp’s infrastructure is falling apart because no one realized it would have to last so long.
“Nobody who was sitting in my seat 10 years ago would have thought somebody 10 years later would be sitting here,” Rear Adm. Richard Butler, commander of the prison, said last January. Butler said the challenge is finding places willing to take detainees and convincing Congress to remove barriers to their transfer.
“Until that changes, GTMO is going to be here,” he said.
Correction: An earlier version of the article incorrectly identified the man who attempted to blow up an airliner in December of 2010 as Yemeni. In fact, he is Nigerian.