In Trump’s Dying Days, Guantánamo Review Board Approves Yemeni Prisoner for Release

Yemeni prisoner Said Salih Said Nashir (also identified as Hani Saleh Rashid Abdullah), in a photo included in his classified military file, which was released by WikiLeaks in 2011.

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By Andy Worthington, December 15, 2020

In the three years and eleven months since Donald Trump’s inauguration, there has been — until now — no good news from Guantánamo. That first piece of good news, reported by NPR on December 11, is that Said Salih Said Nashir, a 46-year old Yemeni held at Guantánamo without charge or trial for 18 years, has been unanimously approved for release from the prison by a Periodic Review Board.

Consisting of a panel of military and intelligence officials, the Periodic Review Boards were established by President Obama, to review the cases of men held at Guantánamo who had not been recommended for release by Obama’s first high-level review process, the Guantánamo Review Task Force.

The task force’s report — recommending 156 prisoners for release, 36 for prosecution, and 48 for ongoing imprisonment without charge or trial — was issued in January 2010, but by the time the PRBs took place, beginning in November 2013, just 41 of the 48 men recommended for ongoing imprisonment without charge or trial remained: two had died, and five others — high-ranking Taliban officials — were freed in a prisoner swap.

In addition, 23 of the 36 men recommended for prosecution by the task force were made eligible for the PRBs instead, largely because the trial system chosen for the Guantánamo prisoners — the military commissions — was collapsing under legal challenges, as some of the handful of convictions secured since the commissions were contentiously dragged back to life from the history books had been overturned on appeal, with judges ruling — as the government had been warned — that most of its charges, including the most common charge of providing material support for terrorism, were not in fact war crimes.

In Obama’s last three years in office, the PRBs reviewed the cases of all 64 of these prisoners, and in 38 cases recommended the men for release, with all but two of them released before Obama left office. The 26 others — accurately described as "forever prisoners" by the mainstream media — have continued to have their cases reviewed by the PRBs under Donald Trump, but, with a commander in chief who tweeted, even before he took office, that "there must be no more releases from Gitmo," no one was recommended for release until this latest news came through, and, for the most part, the prisoners boycotted the process, having concluded that it had become meaningless.

Recommended for release

Said Salih Said Nashir (also identified as Hani Saleh Rashid Abdullah) broke with this trend, attending his PRB hearing last November, and on October 29 (in a decision not known until last week) the board, "by consensus, determined that continued law of war detention is no longer necessary to protect against a continuing significant threat to the security of the United States."

The decision was long overdue — but the delay is, sadly, typical of the exaggerated sense of caution that has typified bureaucratic assessments of the prisoners’ significance throughout Guantánamo’s history.

In Nashir’s case, he should have been recommended for release after his PRB hearing in April 2016. As I reported at the time:

He is one of a group of six men seized in house raids in Karachi, Pakistan on September 11, 2002, on the same day that alleged 9/11 co-conspirator Ramzi bin al-Shibh was seized, who were then sent to CIA-run torture prisons for six weeks. They were initially regarded as recruits for a specific terrorist attack, although the government has long since walked away from this claim, as became apparent when the first of the six, Ayub Murshid Ali Salih (ISN 836), had his PRB in February, and was approved for release last month.

Crucially, the government conceded that, although the six Yemenis were initially "labeled as the 'Karachi Six,' based on concerns that they were part of an al Qa’ida operational cell intended to support a future attack," it had become apparent that "a review of all available reporting" indicated that "this label more accurately reflects the common circumstances of their arrest and that it is more likely the six Yemenis were elements of a large pool of Yemeni fighters that senior al-Qa’ida planners considered potentially available to support future operations."

In the months that followed, all the other members of the non-existent "Karachi Six" cell were also recommended for release, and all five men were subsequently released, although they all had to be resettled in third countries, because of a long-standing prohibition against repatriating Yemeni prisoners, based on the security situation in their home country. One of the five was sent to Cape Verde, two others were sent to Oman, and the other two, unfortunately, were sent to the United Arab Emirates, where, instead of the freedom they were promised, they have been subjected instead to ongoing imprisonment and abuse in secret prisons.

Nashir, meanwhile, had his ongoing imprisonment approved in November 2016, and although a follow-up hearing was swiftly scheduled, in December 2016, the board reached the same decision in January 2017, and he then had to wait until last November for another opportunity to persuade the board that he didn’t pose a threat to the U.S.

At that hearing, his attorney, Charley Carpenter, who has represented Nashir since 2005, reminded the board that Hani, as he knows him, "is a relatively simple, perhaps naive, man, not given to artifice or scheming," who finds the hearings "highly stressful," and sought to address concerns the board had raised in 2016 about his client’s past activities, which he had clearly spent some time investigating.

His contributions, and that of his fellow attorney, Steve Truitt, evidently helped to persuade the board to approve Hani’s release, with the board members stating in their decision that they had "considered [his] low level of training and lack of leadership position in Al Qaeda or the Taliban, [his] candor regarding his activities in Afghanistan and with Al Qaeda, and [his] efforts to improve himself while in detention, to including taking numerous courses at Guantánamo." They also noted "the ability and willingness of [his] family to support him in the event of a transfer, [his] credible plan for supporting himself in the event of a transfer, and significant improvement in [his] compliance since his last hearing in 2016."

In conclusion, the board members recommended "the following condition[s] that relate to the detainee’s transfer: robust security assurances to include monitoring, travel restrictions and integration support, as agreed to by relevant USG departments and agencies."

Speaking to NPR, Charley Carpenter called the decision "recognition, as we've always thought, that continued imprisonment of this man doesn't help the national security of the United States."

Carpenter added that the process to date was "a long odyssey — and it isn't over yet," but pointed out that it "means that a significant hurdle in his effort to go home has been cleared." As he also explained, he is "optimistic that the incoming administration will renew efforts to move people out of the prison [at] Guantánamo."

Nashir now joins five other men approved for release under Obama, but not released before Trump took office — two men approved for release by the PRBs, and three approved for release by the Guantánamo Review Task Force.

What needs to happen now

Whatever else may happen with Joe Biden and Guantánamo — whether, for example, he ends up with control of Congress and is prepared to spend political capital to finally close the prison — it seems pretty clear that NGOs and lawyers will exert pressure on him to release the men already approved for release, and also to recognize a need to act on what I described above as "the exaggerated sense of caution that has typified bureaucratic assessments of the prisoners’ significance throughout Guantánamo’s history."

While Said Nashir waited nearly a year for the PRB’s decision in his case, others have waited even longer for decisions, suggesting that the board was seriously conflicted about whether to recommend release or ongoing imprisonment. Moath al-Alwi, a talented artist known for his extraordinary models of sailing ships made out of discarded materials, last had his case reviewed on March 27, 2018, and the board didn’t deliver its decision until October 29 this year — the same day as Nashir’s decision — although in al-Alwi’s case they recommended ongoing imprisonment, as they also did in the case of Omar al-Rammah, a Yemeni seized in a dubious mission in Georgia in 2002, whose hearing took place on February 9, 2017.

Even putting aside for a moment the unacceptable delay in delivering decisions in these cases (nearly three years and four years, respectively), it remains clear to those who are able to step back from Guantánamo’s institutionalized sense of caution that neither of these men has committed crimes that, in any other circumstance, would justify nearly 20 years’ imprisonment, and the same is true of other men still held, whose perceived dangerousness seems to relate primarily to their perceived attitude in custody, or to disputed assessments of their significance — men like Khalid Qassim, Asadullah Haroon Gul and Saifullah Paracha, to name just three.

We will be writing more about these and other cases in the coming months, but for now we’d like to leave you with the notion that Joe Biden needs to move swiftly to appoint an official to deal with Guantánamo, to secure the release of prisoners, and to assess how to review prisoners’ cases in a way that is more appropriate than the PRBs.