‘The Remaining 40 Detainees Are All High Risk’

Edited by Sam Thielman

ABOUT TWO MONTHS BEFORE President Biden released Abdul Latif Nasser from 19 years of Guantanamo Bay captivity, a group of eight GOP senators signed a letter asking Biden to keep him imprisoned forever. “The remaining 40 detainees,” the senators wrote, “are all high risk.”

This is clearly untrue, even by the definitions of the Periodic Review Board at Guantanamo, the body of U.S. security officials that officially determines each Guantanamo detainee’s “risk” level. A Radiolab investigation found Nasser was, at worst, a mid-level jihadist fighter “who did not target civilians or kill Americans.” The Periodic Review Board cleared Nasser, a Moroccan, for release in 2016.

But cynically demonizing the Guantanamo detainees is effective. A decade earlier, Republicans used the same tactic to brush President Obama back from closing the site of what I believe history will record among the long litany of American acts of barbarism.

However false the contention of these eight Senators—James Lankford, Marsha Blackburn, Kevin Cramer, Ted Cruz, Steve Daines, Jim Inhofe, Jerry Moran and Thom Tillis—their letter captures the bureaucratic logic of the Periodic Review Board, which is expressed in calmer tones, and continues to fuel indefinite detention. Biden is relying on that logic even in rebuking the senators and releasing Nasser.

In a conference call with reporters on Monday announcing Nasser’s repatriation, a “senior administration official” described the processes and relevance of the Periodic Review Board, according to the transcript in my inbox. In response to a question about any “acceleration of trying to repatriate more Guantanamo prisoners,” a different senior official said, “We are continuing to rely on that PRB process to determine whether law-of-war detention remains necessary to protect against a continuing significant threat to the national security of the U.S.”

THE PERIODIC REVIEW BOARD is, in a word, bullshit.

Before 9/11, Zayn al-Ibidin Muhammed Husayn, better known as Abu Zubaydah, helped jihadist fighters flee Afghanistan into Pakistan. The CIA called him the third most senior member of al-Qaeda, despite quickly knowing otherwise, and made him a human test case for its post-9/11 torture program. His ignorance of al-Qaeda set into motion the perpetual motion machine of torture: If he didn’t reveal something he didn’t know, this proved he was hiding something that required more torture to extract. His torturers shattered Husayn’s mind, took his left eye, and grievously wounded his genitals. In 2006, the CIA quietly conceded that Husayn had never joined al-Qaeda. Instead of releasing him, Langley sent Husayn to Guantanamo Bay.

In March 2020, the Periodic Review Board, examined Husayn’s case. By “consensus,” it declared, “continued law of war detention of the detainee remains necessary to protect against a continuing threat to the security of the United States.” The Board pretended the CIA had never retracted its assessment of Husayn’s membership in al-Qaeda. Its summary statement refers only to “[Husayn’s] claim that he was not a formal member of al-Qaida.”

Instead, the Board claimed to believe “[Husayn’s] past involvement in jihadist activity to include probably serving as one of Usama bin Ladin’s most trusted facilitators.” That bureaucratic shrug – “probably” – ensured Husayn could remain locked in Guantanamo, or a successor prison, where he cannot tell the world what the CIA and the military have done to him.

Paranoia is baked into the Board’s calculus. It seeks to determine “risk” levels – specifically the risk of missing a future attack, which frightens bureaucrats who will take the blame for that attack. Every reporter who covers these proceedings learns that the board is not adjudicating truth or guilt. It exists to make unfalsifiable statements about whether a collection of military officers, intelligence analysts, diplomats, homeland-security potentates and the interests they represent feel threatened. The supposed threats are all middle-aged men who have spent at least a decade – nearly two decades, for most – in an American cage. The Board’s decisions have the same consequences for them as trial, but without any judicial accountability.

I SAY ALL THIS BECAUSE I don’t want what follows to be misconstrued as a defense of the Periodic Review Board: On the Board’s own distorted terms, Blackburn, Cramer, Cruz, Daines, Lankford, Inhofe, Moran, and Tillis are wrong about Nasser. In fact, they’re so cavalier with the public record as to make it useless to distinguish their statement from a lie. It’s not as though they don’t know better. Inhofe was the chairman of the Senate Armed Services Committee, to which the Pentagon answers, and has served on it for as long as I can remember covering it. Blackburn, Tillis and Cramer sit on it as well.

The Periodic Review Board, as a matter of fact, affirms that ten men, out of the 39 remaining at Guantanamo, pose no threat to the United States. This is an admission against bureaucratic interest. Given the aggression the same board shows to Husayn, clearing these ten men for release declares that there is no possible pretext for continuing to cage them.

Uthman Abd al-Rahim Muhammad Uthman, caged since 2002, persuaded the U.S. to clear him for transfer in May – a remarkable feat, since the Board had previously claimed he was one of bin Laden’s bodyguards. (“He fought at Tora Bora probably against coalition forces…”)

Ridah Bin Saleh al-Yazidi, whom I think hasn’t gone through the PRB due to noncooperation, is now the final Tunisian inside Guantanamo even though a predecessor of the PRB cleared him to leave in 2007.

Better to read the Times’ Carol Rosenberg, the essential Guantanamo Bay reporter, on the other eight. Their names are: Muieen A Deen Jamal-A Deen Abd al-Fusal Abd al-Sattar; Sufyian Barhoumi; Hani Saleh Rashid Abdullah; Tawfiq Nasir Ahmed al-Bihani; Saifullah Paracha – the 73-year old man who is Guatnanamo’s oldest prisoner; Sharqawi Abdu Ali al-Hajj; Abdul Rahim Ghulam Rabbani; and Abdulsalam al-Hela, a black site survivor whom federal courts used last year to extinguish the last embers of hope for anything resembling due process at Guantanamo.

Another 17 men at Guantanamo have never been charged with any offense. The Board still considers them too risky to release. There is Mohammad al-Qatani, who was the test case for torture at Guantanamo the year after Husayn was the test case for CIA torture. There is Zakaria al-Baidany, a rare captive in Georgia – the nation in the Caucasus, not the U.S. state – who “may have trained at al-Qaeda-associated camps in Afghanistan before relocating in Georgia in mid-2001 to support the Chechen jihad,” according to American security services. This is the caliber of forever-prisoner Guantanamo holds: A man who, even if he did everything the security services substantively-but-not-formally accuse him of doing, cared about fighting in Chechnya, not in Chicago. Consider as well that Uthman was recommended for continued detention until February, with no explanation provided for this total bureaucratic reversal. Rarely does anyone ask what “may have trained at al-Qaeda-associated camps” means.

And there is Husayn, and Moath Hamza Ahmed al-Alwi, and Khaled Ahmed Qassim, and Zuhail Abdo Anam Said al-Sharabi, and Ghassan Abdullah al-Sharbi, and Said bin Brahim bin Umran Bakush, and Ismail Ali Faraj Ali Bakush, and Sanad Yislam al-Kazimi, and Hassan Mohammed Ali Bin Attash, and Mohammed Ahmed Ghulam Rabbani, and Mustafa Faraj Masud al-Jadid Mohammed, and Guled Hassan Duran, and Mohammed Abdul Malik Bajabu, and Assadullah Haroon. And Muhammad Rahim, whom I wrote about in May.

Others have been charged in military commissions, but not yet convicted. Their names are likely more familiar. All are survivors of CIA torture. Accused Bali bombing architect Hambali. The five 9/11 co-defendants: Khalid Shaikh Mohammad, Khalid bin Attash, Ramzi bin al-Shibh, Mustafa Ahmed al-Hawsawi and Ammar al-Baluchi. Accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri, who can claim to have been tortured by a future CIA director. Abd al-Hadi al-Iraqi. Two others face prosecution in the military commissions, a decision announced the day after President Biden took office: Mohammed Farik Bin Amin and Mohammed Nazir Bin Lep.

Others have been convicted by that kangaroo military tribunal: Majid Khan, who spent much of his childhood in Maryland, and whose agreement to testify for the commissions against other detainees has delayed his sentencing. Last is Ali Hamza Ahmad Suliman al-Bahlul, who is serving a life sentence that, all things considered, seems redundant.

YOU MAY NOT BE SURPRISED to hear that eight senators lied about the people in Guantanamo. But the point isn’t the lie. It’s the impunity behind the lie, which also animates the Periodic Review Board.  Who will say otherwise when we declare that some of the most demonized people in the world are dangerous?

Whether or not they contradict its findings, the senators are articulating a crude version of what the Periodic Review Board has institutionalized. Simply by virtue of being a nonlegal hearing – just a dispositional one – the truth about what any of these men did vanishes into irrelevance. The only relevant criterion is whether the assembled security-state officials who comprise the Board, representing their various institutional interests, are comfortable releasing someone. There is a simulacrum of process – periodic assemblages, subsequent deliberation, a public-if-obscure announcement – to mask the fundamental denial of due process. There is transparency of the quasi-verdict, instead of transparency about the pivotal decisionmaking. The institutions represented, as well as the broader political atmosphere of controversy around releasing Guantanamo detainees, are, to put it extremely mildly, unfavorable to release. So, of course, is in functionally redefining risk from risk of attack to risk of exposure, as with the continued unjustifiable detention of Husayn/Abu Zubaydah.

That process-simulacrum is characteristic of liberal custodianship of the War on Terror, the subject of Chapter 4 of Reign of Terror, currently available for preorder. It prefers not to say things like “the remaining detainees are all high risk.” But it also operates as if they are, with releases happening only when it becomes untenable, for one reason or another, to continue to hold them. (And when the diplomatic apparatus of repatriation convinces a foreign country to accept someone – a process complicated by foreign capitals' frequent objection that they don’t want to take in Guantanamo captives that the U.S. won’t permit to live in America.)

The major institutional change Obama implemented when it came to Guantanamo was not, in fact, releasing detainees – President Bush released more people – but instead resurrecting and tweaking Bush’s abandoned non-judicial disposition boards to create the Periodic Review Board. I know the continuities because I have covered bothversions.

Obama was trying to route Guantanamo around politics and into technocracy, as if every decision concerning Guantanamo is not fundamentally political. Biden is following in his footsteps.

BIDEN’S RELEASE OF NASSER on Monday deserves recognition. “The Biden administration had the integrity not to file a pleading opposing his release,” Nasser’s attorney Thomas Durkin, a longtime member of the Guantanamo Bar, told the PBS NewsHour. You can say that Durkin’s bar is a low one to clear, and you would be right, but Biden cleared it, and Obama’s Justice Department frequently did not.

But without challenging Guantanamo at the root – that is, repudiating indefinite detention, wherever the U.S. performs it, rather than rendering a hoped-for closure a technocratic decision made along opaque and arbitrary lines – Guantanamo will survive. Either the camp will remain, or a successor will open. Someone will again seek to fill it up with whomever they decide are Bad Dudes. QAnon is pretty open about telling you who it wants in Guantanamo Bay.

Biden has not, at least yet, shown a willingness to embrace that root-and-branch rejection. Elevating the PRB as the arbiter of repatriation isn’t a promising sign. Nor is his decision to assign repatriation negotiations to diplomats, a bureaucratic mandate that risks putting Guantanamo releases at the bottom of the priority pile for overworked U.S. embassies. Obama, for what it’s worth, appointed special envoys for the transfers.

At least Nasser is free. On Tuesday, his attorneys, from the human-rights group Reprieve, released his first statement since returning home:

“I was born again on July 19. My birthday is no longer March 4. I was born yesterday on July 19.”

“I have no words to describe my overwhelming sense of happiness and joy. It is like a miracle after 20 years to be home and celebrate Eid together with my family.”

“I want to thank everyone, all the people who worked very hard and spared no efforts to make this possible.”