Thanks to NBC News, and the four anonymous US government officials who spoke to them, for exposing the latest scandal involving the US prison at Guantánamo Bay — the refusal of the Biden administration to release eleven men, for whom long months of negotiation had secured a safe and viable resettlement option, because of the perceived “political optics” of freeing them after the attacks on Israel by Hamas and other militants on October 7.
Within Guantánamo circles, this scandal was well known, but attorneys for the men had been subjected to a Protective Order issued by the government, preventing them from talking about it, and, as a result, they had all dutifully kept quiet, as had others, like myself, who had got to know about it.
Their silence is, in itself, an indictment of how the US government operates at Guantánamo, as I also recognised when I refused to publicize it, because of the fundamentally lawless situation in which these men are held.
It’s crucial to understand that the decisions that were taken to release these men — made unanimously by high-level US government review processes — were purely administrative, and completely outside the US legal system.
This not only prevents the men and their attorneys from being able to appeal to a court if the government fails to release them; it also, more crucially, means that they are essentially prisoners of the executive branch, and that, therefore, criticizing the executive runs the risk of endangering their release.
If you’re reading this, I hope you recognize quite how grotesque this situation is — that men unanimously approved for release from Guantánamo cannot seek their release through the courts, because the decision to release them rests solely with the executive branch, and that, if senior officials fail to prioritize their release, there is nothing that anyone can do about it; there is no court to appeal to, and no way of even publicly criticizing the government’s inaction, because doing so risks the wrath of the handful of powerful men — President Biden and his senior officials — who hold the keys to the jail.
The predicament the prisoners and their lawyers face disgracefully confirms that, despite having been open for over 22 years, Guantánamo is as fundamentally lawless now as it was when the prison first opened.
A brief history of Guantánamo’s persistent lawlessness
When Guantánamo was first established, in January 2002, the Bush administration declared that the men and boys it had rounded up and sent there had no rights whatsoever as human beings.
Long years of legal struggles eventually secured habeas corpus rights for the prisoners, and led to 32 men having their release ordered between 2008 and 2010 after District Court judges examined their cases, and ruled that the government had failed to establish that they had any meaningful connection to Al-Qaeda, the Taliban or associated forces.
This period, from 2008 to 2010, was the only time that the law had any meaning for the men held at Guantánamo. Sadly and shamefully, it came to an end when politically motivated appeals court judges rewrote the rules governing the habeas cases, in particular by requiring the lower court judges to regard everything submitted as “evidence” by the US government — however risible — as “presumptively accurate,” making it almost impossible for the lower courts to continue to order the release of prisoners.
Since the summer of 2010, only one habeas corpus petition has been granted by the courts, and, as the law was shut down, administrative reviews took over instead — Obama’s Guantánamo Review Task Force, which, in 2009, reviewed the cases of the 240 men inherited from George W. Bush, and recommended two-thirds of them for release (all but three of whom were eventually freed), and the Periodic Review Boards (PRBs), established in 2013, an ongoing parole-type process that led to an additional 38 men being approved for release in Obama’s second term in office.
All but two of these men were freed before Obama’s presidency came to an end, and, after the horrors of Donald Trump’s four years as commander in chief, when Guantánamo was fundamentally sealed shut, Periodic Review Boards under Joe Biden once more began approving release for the majority of the men whose ongoing imprisonment without charge or trial had been previously upheld by the PRBs.
The eleven men who were supposed to be released in October are amongst 16 men in total (over half of the 30 men still held at the prison) who have been approved for release by the PRBs (and in three cases by the earlier Guantánamo Review Task Force). I have been focusing on their stories for the last 16 months — through posters, updated every month, showing quite how long they have been held since the decisions were taken to release them, and, between February and April this year, in a series of ten articles published on the Close Guantánamo website and on my website here.
Every month these tallies become ever more shocking. As of today, May 22, these 16 men have been held for between 607 and 1,301 days since they were approved for release, and, in the three outlying cases based on the deliberations of the Guantánamo Review Task Force, for 5,234 days.
The NBC News story
In NBC News’ story, none of the above was mentioned. The journalists who wrote it — and their editors — either didn’t know or didn’t care that these men are as fundamentally without rights as they were when Guantánamo opened — or that they are essentially prisoners of the president and his senior officials.
These are major journalistic failings, but we must at least be grateful that they have finally brought this shocking story to light.
As they describe it, the eleven men “are either citizens of Yemen or have ties to the country,” according to the officials, and “were scheduled to be resettled in Oman,” located on the south eastern coast of the Arabian peninsula, just to the north of Yemen, which successfully resettled 28 Yemeni prisoners between January 2015 and January 2017. The reason that Yemenis need resettling in third countries is because of provisions inserted by Republicans into the annual National Defense Authorization Act, which prevent the repatriation of prisoners to proscribed countries including Yemen, Libya and Somalia.
According to NBC News’ sources, officials — presumably led by former ambassador Tina Kaidanow, who was appointed as the Special Representative for Guantánamo Affairs in August 2021, and is “responsible for all matters pertaining to the transfer of detainees from the Guantánamo Bay facility to third countries” — “spent months negotiating the terms for the detainees to be transferred to Oman, including measures intended to guarantee the men wouldn’t become a security threat and any possible compensation they would receive.”
“Compensation,” I should note, is highly unlikely, as the US government has never offered any kind of compensation to former prisoners, refusing, ever, to acknowledge any kind of wrongdoing on their part. It is more probable, therefore, that the reference in NBC News’ article was to whatever money the US would provide to Oman to support the resettlements, as arranged via strictly confidential “diplomatic assurances.”
The sources added that the planned release of the men in October “was imminent when it was called off at the last minute,” as the administration had “already notified Congress that the transfer would take place,” a requirement that Congress imposed on the executive branch under President Obama, requiring the administration, by law, to provide Congress with 30 days’ notice prior to the release of any prisoners.
Several of the officials who spoke to NBC News said that “the decision to stop the transfer was not related to any concerns raised by Oman or last-minute disagreements between the US and Oman.” Instead, they expressed their belief that “it was the result of members of Congress, primarily Democrats close to the president, privately raising concerns about the timing” — the “political optics after Hamas’ attack on Israel,” as NBC News described it.
The officials’ decision to speak out came about because, although Republican administrations seem to have completely lost touch with any sense of outrage about their own government’s actions, Democratic administrations still harbor some individuals who care about flagrant and ongoing abuses of justice like Guantánamo.
They explained that, more than seven months since the planned release was abandoned, “the administration has not set a new date for the transfer,” and “the detainees remain at Guantánamo with no clarity on when, or if, it will happen.”
The officials said they were “concerned” that “the likelihood that the transfer takes place before November’s presidential election diminishes the closer the election gets,” and feared that, if Donald Trump is re-elected in November, the eleven men “will remain at the detention facility for at least another four years.”
The officials also explained that they were worried that “the stalled process” that has left these men “sitting in detention for months without clarity about when they could be transferred could become a human rights concern” — although, on that latter point, every administration that has been in charge of Guantánamo has shown little or no concern for human rights criticisms, and the Biden administration is no exception, as was shown last year when they essentially blanked high-level and damning criticisms of the prison’s operations that were submitted by United Nations Special Mandate holders.
In a report issued last June, Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, concluded, after becoming the first ever UN Rapporteur to visit the prison in February, that, despite some improvement in conditions over the years, the prison’s operations overall constitute “ongoing cruel, inhuman, and degrading treatment,” and “may also meet the legal threshold for torture.” Two other devastating opinions were issued by the Working Group on Arbitrary Detention, one of which indicated that the very basis of the detention system at Guantánamo “may constitute crimes against humanity.”
According to the officials, the deal for the transfer of the eleven Yemenis “is still under discussion with Oman, including about specific timing and conditions.” They added that “it could happen this year,” although they were all clearly concerned that the importance of freeing these men has fallen off President Biden’s radar.
One senior administration official, perhaps seeking to provide cover for the president, suggested that Oman “has at times since October not wanted the transfer to take place,” although they stressed that the cases were not “collecting dust somewhere,” adding that the administration was “actively looking at all those administrative steps to make it happen,” while acknowledging that “there are frustrations.”
Pressure is needed to prioritize these men’s release
All of us who care about Guantánamo — and the desperate need for these men to be freed from what has become their unforgivably long executive imprisonment — need to put pressure on President Biden and the Secretary of State, Antony Blinken, to overcome their “political optics” problem, to re-energize the transfer process for these eleven men, and also to commit resources to finding homes for the five other men who have long been approved for release, but who are not part of the Oman deal — a Tunisian and a stateless Rohingya who have been refusing, since 2010, to deal with the authorities regarding their release, a Kenyan whose government apparently doesn’t want him back, and a Somali and a Libyan.
In addition, it should be noted that, by refusing to free these eleven men because of “political optics” regarding Hamas’ attacks on Israel, the Biden administration has, lamentably, slipped into an all too familiar pattern of casual Islamophobia, whereby all Muslims, whether Palestinians in the Gaza Strip, or Yemenis at Guantánamo, are allowed to be perceived as terrorists.
In Gaza, this refusal has led to the deaths of tens of thousands of Palestinian civilians, with barely a murmur of dissent from the administration, and at Guantánamo it has, not for the first time, led to men without rights becoming political playthings, as though it means nothing that they have never been charged with a crime, that high-level US government review processes have concluded unanimously that it is safe to release them, and that they are, fundamentally, the personal prisoners of just two men — President Biden and Antony Blinken.
They need to be freed.
- I wrote the above article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
