Attorneys representing Guantanamo prisoners were notified by a government official late Friday night 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.
In an email I obtained, retired Navy Rear Admiral Norton C. Joerg, who last year was appointed by former Secretary of Defense Leon Panetta to the position of director, periodic review secretariat, said, “a new Periodic Review Board (PRB) process will review the continued detention of certain detainees to assess whether continued law of war detention is necessary to protect against a continuing significant threat to the security of the United States.”
A Defense Department spokesman was not available late Friday evening to comment on the development.
Eighty-six of the 166 prisoners at Guantanamo have already been cleared for release. In May, President Obama announced a series of steps his administration intended to undertake to release the men, including lifting a moratorium on the transfer of Yemeni prisoners. The reviews of about 71 other individual cases are another step toward reducing the population of the prison.
The announcement appears to be timed to coincide with a Senate Judiciary subcommittee hearing scheduled to take place Wednesday: “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” the first significant hearing on Guantanamo since 2009.
The notification to Guantanamo attorneys by Joerg, under the subject line “General Notice to Habeas Counsel Regarding Commencement of the Periodic Review Board Process,” was made two years after President Barack Obama signed an executive order announcing the formation of a parole board of sorts to begin reviewing the prisoners’ cases.
The reason the administration claims the prisoners can neither be prosecuted nor released is that the evidence against them was obtained through torture or they are still too dangerous to release.
The periodic review board, which Joerg’s email said would be “composed of senior level officials from various U.S. government agencies,” was supposed to begin reviewing the cases last year. Although guidelines were issued by the Defense Department in May 2012 that described the review process and what it would entail, the board never got to work.
It appeared that Obama’s campaign promise of shuttering Guantanamo was no longer a priority for the president. Indeed, last December the State Department reassigned the special envoy whose sole job was to work on closing the prison and repatriate the prisoners to other countries.
But in February, prisoners launched a hunger strike over what they said was the mishandling of their Qurans by military officials. While the inspection of the Qurans may have been the catalyst behind the hunger strike, the driving force that has sustained it since then is despair over more than a decade of indefinite detention and no hope of ever being released.
With dozens of starving prisoners being subjected to the brutal process of force-feeding to keep them alive, Guantanamo was catapulted back into the national spotlight and, once again became a global story. Obama and congressional lawmakers were under renewed pressure to take action and start revisiting ways in which the prison could be permanently shut down.
In a major speech on his counterterrorism policies in May, one that activist Medea Benjamin interrupted several times with calls for the president to use authority Congress granted him under the National Defense Authorization Act (NDAA) and begin releasing “cleared” prisoners, Obama acknowledged he had not made any progress on his promise to close Guantanamo. However, he blamed Congress for his inaction.
But, as human rights groups pointed out, Obama was also to blame. The organizations noted that the president’s executive order mandated that the periodic review board needed to start reviewing cases in March 2012.
National Security Council spokeswoman Caitlin Hayden acknowledged in May that the periodic review board process “has not moved forward quickly enough” but she told me the administration would “work to fully implement” it.
Obama has now made good on that promise, which may provide comfort to the 73 prisoners who are still waging a hunger strike, more than half of whom are designated for force-feedings. Since the start of Ramadan two weeks ago, the number of hunger strikers has decreased by 33 as the prisoners have been given the opportunity to return to communal living and pray together during the month-long fast.
David Remes, a Washington, DC-based human rights attorney who represents more than a dozen Guantanamo prisoners, said he “commends the motivation behind giving these men a second look.”
“The question I have is what is there that’s new to look at?” Remes said in an interview, referring to evidence that might be used against the prisoners by the review panel to justify their continued imprisonment. “What’s surreal about this is that nobody is going to have new information about what happened 11 or 12 years ago.”
“We’ll do everything we can to argue that the detainee should be approved for transfer. The periodic review board is likely to be predisposed to approval to transfer because the idea here is to close down Guantanamo. But I just don’t understand how this is supposed to work. Because whatever process or structure you set up the government has everything in its files that it always had. The accusations will remain the same. They went to an al-Qaeda training camp. We’ve been through this over and over. What are we [the attorneys] going to do, send investigators out to the badlands of Afghanistan to find people to admit they sold a guy to the U.S. for bounties? What new information are we expected to come up with” to challenge the government?
Joerg’s email to the Guantanamo attorneys said the review board would not address whether the prisoners’ “law of war” detention is legal, “but rather makes discretionary determinations about the individual’s threat and the necessity of continued law of war detention.”
“Detainees receiving hearings will be notified by a Personal Representative assigned to assist them in the process,” Joerg wrote. “Counsel who have a prior relationship with detainees who will receive a hearing will be contacted in advance of the notification to the detainees.”
Moreover, according to Obama’s executive order:
1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.
(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government’s information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.
(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.
Last month, the Defense Department released under the Freedom of Information Act (FOIA) a closely held list that for the first time identified the so-called “indefinite detainees.”