The Guantánamo Review Task Force's Decisions on Who to Release, Who to Try and Who to Hold Indefinitely Are Finally Released

Faces of the Guantánamo prisoners, as revealed in the classified military files released by WikiLeaks in April 2011.

Please see our updated Guantánamo prisoner list here, which now, for the first time, provides the status of all of the remaining 166 prisoners, based on the "Final Dispositions" of President Obama's Guantánamo Review Task Force (dated January 22, 2010, but only made publicly available on June 17, 2013) indicating whether they have been cleared for release, whether they have been designated for indefinite detention without charge or trial, and whether they were recommended for prosecution.

By Andy Worthington, June 26, 2013

On June 17, 2013, through FOIA (Freedom of Information Act) legislation, a long-standing mystery was solved -- the identities of the Guantánamo prisoners recommended for trial, for indefinite detention and for "conditional detention" by the inter-agency Guantánamo Review Task Force that President Obama established after taking office in January 2009 -- when the task force's "Final Dispositions as of January 22, 2010" were released by the Department of Justice.

The "Final Dispositions" document contains the names of 240 prisoners, one short of the total number of prisoners held when the the task force began its deliberations -- that extra prisoner being Ali Hamza al-Bahlul, who was convicted after a one-sided trial by military commission in November 2008, at which he refused to mount a defense, and given a life sentence.

Of those 240, the task force, in its final report in January 2010, recommended 156 for release, 36 for trials and 48 for indefinite detention without charge or trial, but did not reveal which prisoners were assigned to the various categories.

71 were subsequently released, and three died, leaving 166 men still held.

Of those 166, it has long been known that 86 are cleared for release (and that one of the three men who died -- Adnan Latif, who died last September -- was also cleared for release), and 33 were recommended for trials. It was also known that 46 were recommended for indefinite detention without charge or trial, and that the other two men who died -- Awal Gul and Inayatullah, both Afghans, who died in 2011 -- were also in this category.

However, the only prisoners identified by name -- other than the three men who died -- were the 13 who have been put forward for trials, and 56 of the prisoners cleared for release, whose names were released by the Department of Justice in a court case last September.

Until the "Final Dispositions" were released, it was not known who were the 23 other prisoners recommended for trials, and who were the 46 men designated for indefinite detention. Nor were the identities known of the 30 other men, all Yemenis, who were also cleared for release, but with a proviso. The task force conjured up a new category for them, "conditional detention," which it described as being "based on the current security environment in that country."

The task force added, "They are not approved for repatriation to Yemen at this time, but may be transferred to third countries, or repatriated to Yemen in the future if the current moratorium on transfers to Yemen is lifted and other security conditions are met."

The moratorium referred to was imposed by President Obama just weeks before the task force's report was issued, as a response to the failed airline bomb plot of Christmas Day 2009, which was hatched in Yemen. The task force gave no indication of how it would be decided that the security situation in Yemen had improved, but in fact President Obama's moratorium effectively consigned all the Yemenis to "conditional detention." That remained the case until May 23, 2013, when President Obama declared, in a major speech on national security, "I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis."

Despite that, none of the 56 cleared Yemenis have been released, but nor have any of the 30 other cleared prisoners either.

The release of the "Final Dispositions" document is important because, for the last three and a half years, since the task force's report was published, it has been difficult to campaign for men whose status was unknown.

Now we do know their identities, we can campaign for them much more effectively than before. In the weeks to come, I'll be analyzing the list in detail, examining who was placed in which category, and assessing what the various decisions mean. However, upfront it is clear to Tom Wilner and I that the wording used to describe the 46 men to be held indefinitely is important.

Firstly, we note the distinction between 33 of these men and 13 others. 33 are recommended for "Continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war,” while 13 are recommended for "Continued 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." We cannot say with any certainty what this sub-category signifies, as, back in 2009-10, until Congress intervened to block it, the intention to transfer prisoners to the U.S. was part of the Obama administration's plans for all the prisoners except those cleared for release. As a result, we cannot see why one sub-group of the 46 should be moved to the U.S., but not the other.

Secondly, the description of "continued detention … informed by principles of the laws of war" is very different to the general descriptions of these men as being indefinitely detained, and seems to indicate and acceptance that the justification for holding the majority of the prisoners is finite, and tied to the duration of the armed conflict in connection with which they were seized .

As Tom states, "Those principles allow detention without charge or trial only so long as the conflict in which the detainee was apprehended continues. In the absence of charge, trial and conviction, U.S. law does not allow people to be detained after an armed conflict has ended, and these documents recognize that. The conflict in Afghanistan, which is the proper one to consider, is about to end. And the president has now acknowledged that even the so-called 'war' on terrorism cannot be indefinite but must come to an end."

Finally, for now, here are three particular demands we can make:

1. We can campaign for the release of all 86 cleared prisoners, because we now know the identities of the 30 Yemenis recommended for "conditional detention," to add to the 56 men whose identities were already known.

2. We can demand that President Obama initiates periodic reviews for the 46 men recommended for indefinite detention without charge or trial, which he confirmed in an executive order in March 2011. At the time, he promised that Periodic Review Boards (PRBs) would be established, but, shamefully, these have not yet begun. As well as continuing to push for the start of these reviews, we can also now provide useful information to help the administration ascertain that, in most cases, fears about the threat posed by these men has been overblown, because the material that purports to be evidence justifying these men's detention is, in most cases, more fundamentally unreliable than anyone in the administration realizes. This is something we have been offering to do for many months, and we hereby renew our offer to provide assistance.

3. We can demand that, following the recent admission that a maximum of 12 current prisoners will be charged and tried, which was made by Brig. Gen. Mark Martins, the chief prosecutor of the military commissions, on June 10, the other men recommended for prosecution by the task force, but who will never be charged -- a total of 19 men -- must also be given periodic reviews, like the 46 men designated for indefinite detention without charge or trial.