The Ongoing Injustice of Guantánamo: Newly Announced Review Boards Will Be Toothless Unless Cleared Prisoners Are Freed

Campaigners with the Save Shaker Aamer Campaign outside the Houses of Parliament in London on July 18, 2013 (Photo: Andy Worthington via Flickr).

By Andy Worthington, August 9, 2013

As the hunger strike at Guantánamo reaches the six-month mark, it is, sadly, apparent that President Obama has failed to act swiftly to release prisoners following his major speech on national security issues on May 23, when he promised, "To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.”

Since then, there has been some progress, just not enough. Last week it was announced that President Obama has notified Congress of his intention to release two Algerian prisoners, but 86 of the remaining 166 prisoners have been cleared for release since January 2010, when an inter-agency task force established by the president when he took office issued its report regarding the disposition of the prisoners, and all 86 need to be released.

We understand that Congress has imposed onerous restrictions on the release of prisoners, insisting that the administration must provide assurances that any released prisoner must be unable to engage in terrorist acts against the U.S. However, Guantánamo must be closed, as President Obama promised when he took office in January 2009, and the hunger strike must be brought to an end.

The only way forward is for President Obama to address both issues by releasing all the cleared prisoners as swiftly as possible -- to their home countries if possible, to third countries if it is unsafe for them to be repatriated, and to the U.S. if third countries cannot be found.

For the 80 other prisoners, it must also be shown that justice has not permanently disappeared, and to do that the president needs to put them on trial or release them. When the task force issued its report in January 2010, the recommendations were that 36 prisoners should be prosecuted, and 48 others should continue to be held without charge or trial, on the basis that they were to dangerous to release, but insufficient evidence existed to put them on trial.

The decision to continue holding 48 men without charge or trial was fundamentally unacceptable, and was only tolerated by critics of the administration because, when President Obama issued an executive order authorizing the ongoing detention of the 48 men in March 2011, he also promised that there would be periodic reviews of their cases to establish if they were still regarded as a threat.

Disgracefully, the Periodic Review Boards had still not been established two years and four months after President Obama issued his executive order, and it was not until July 20 that lawyers representing the prisoners were notified by the government that "the men who the Obama administration has determined can neither be prosecuted nor released will finally have their cases reviewed to determine whether they should still be indefinitely detained," as Jason Leopold described it in his article announcing the news.

The following day, Carol Rosenberg in the Miami Herald elaborated, explaining that 71 of the remaining 166 prisoners would "get parole-board-style hearings." This includes those designated for continued detention by the task force and in President Obama's executive order of March 2011, whose numbers were reduced to 46 when two of them died at the prison in 2011, and 25 of the men recommended for prosecution.

This is progress of a kind, as it shows that the administration accepts that it is unacceptable to keep holding these men without reviewing their cases, and also recognizes that prosecution is unfeasible for the majority of the men recommended for prosecution by the president's task force. This was demonstrated most powerfully last October, and in January this year, when judges in the federal appeals court in Washington D.C. dismissed the convictions against two of the only men ever convicted in the military commission system, on the basis that their crimes were not recognized as war crimes when the legislation governing the commissions was established by Congress in 2006 (after an earlier version was ruled illegal by the Supreme Court).

Since the task force recommended 36 men for prosecution, one was tried and convicted in federal court before Congress raised its ideological barriers, two have been tried and freed, two others have accepted plea deals but are still held, and eight others have been charged. That leaves 23 who will not be charged -- close to the figure of 25 mentioned in the announcement that the PRB process has been initiated, and more than acknowledged in June by Brig. Gen. Mark Martins, the chief prosecutor of the military commissions, who said that, of the 33 men recommended for prosecution, a minimum of 19 would never be charged.

As the Miami Herald described the announcement of the establishment of the PRBs:

Retired Rear Adm. Norton C. Joerg, a former senior Navy lawyer during the Bush administration, advised the lawyers [for the prisoners] that the new six-member panels do not decide whether the Pentagon is lawfully imprisoning their captive client. Rather, the panel members “assess whether continued law of war detention is necessary to protect against a continuing significant threat to the security of the United States.”

However, for the PRBs to have any meaning, it is imperative that the prisoners already cleared for release are freed, otherwise they are meaningless.

This was noted by Ramzi Kassem, a law professor at the City University of New York and the attorney for several Guantánamo prisoners, including Shaker Aamer, the last British resident in the prison, and Abdelhadi Faraj, a Syrian. Speaking to the Miami Herald, Mr. Kassem said, “For the Periodic Review Boards to be taken seriously, the U.S. government should begin releasing the men that were cleared for release by the previous interagency entity years ago.”

While we await further news about the PRBs, and again offer our services to provide detailed and objective analyses of the men 's cases to assist the boards, as we have been offering since last year, we can only reiterate the importance of releasing cleared prisoners before embarking on another process that purports to approve any more prisoners for transfer out of the prison, but then fails to let them go.

The unpalatable truth, for Americans who believe that their country respects the rule of law, is that, at present, the men still held at Guantánamo are all indefinitely detained, prisoners of opportunistic Congressional obstruction and Presidential inertia, and they resemble the victims of dictatorships who have no regard for the law. Moreover, by establishing a task force to review their cases, and then refusing to release them when cleared for release, the U.S. is actually acting with more cruelty than totalitarian regimes, which wouldn't establish a process that purported to free prisoners, but then consigned them to indefinite detention anyway.

President Obama needs to release the 86 cleared prisoners, and he needs to do it now, and he also needs to ensure that the Periodic Review Boards for the the men are fair and objective. No other course of action is acceptable.