[Pnews] Guantánamo Scandal: Eleven Men Were Set to Be Freed Last October, Until “Political Optics” Shifted After Hamas’ Attack on Israel

[Prisoner News]

closeguantanamo.org
<https://www.closeguantanamo.org/Articles/440-Guantanamo-Scandal-Eleven-Men-Were-Set-to-Be-Freed-Last-October-Until-Political-Optics-Shifted-After-Hamas-Attack-on-Israel>
Guantánamo Scandal: Eleven Men Were Set to Be Freed Last October, Until
“Political Optics” Shifted After Hamas’ Attack on Israel
May 21, 2024
------------------------------

The eleven men, all Yemenis, who were supposed to have been resettled in
Oman in October.

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By Andy Worthington, May 21, 2024

Thanks to NBC News, and the four anonymous U.S. government officials who
spoke to them, for exposing the latest scandal
<https://www.nbcnews.com/politics/national-security/biden-ready-move-11-detainees-guantanamo-october-paused-seven-months-rcna152985>
involving the U.S. 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 U.S. 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 U.S. government review processes
— were purely administrative, and completely outside the U.S. 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
<https://www.andyworthington.co.uk/guantanamo-habeas-results-the-definitive-list/>
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
<https://www.andyworthington.co.uk/2011/11/29/as-judges-kill-off-habeas-corpus-for-the-guantanamo-prisoners-will-the-supreme-court-act/>
governing the habeas cases, in particular by requiring the lower court
judges to regard everything submitted as "evidence" by the U.S. 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
<https://www.closeguantanamo.org/Articles/378-For-First-Time-Since-2010-A-Judge-Grants-a-Guantanamo-Prisoners-Habeas-Corpus-Petition-Ruling-that-Asadullah-Haroon-Guls-Imprisonment-is-Unlawful>,
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 <https://www.closeguantanamo.org/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
<https://www.closeguantanamo.org/Prisoners>) 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
<https://www.andyworthington.co.uk/wp-content/uploads/FreeTheGuantanamo16-May-1-2024.png>,
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 here
<https://www.closeguantanamo.org/Articles> and on my website
<https://www.andyworthington.co.uk/tag/free-the-guantanamo-16/>.

Every month these tallies become ever more shocking. As of today, May 21,
these 16 men have been held for between 606 and 1,300 days since they were
approved for release, and, in the three outlying cases based on the
deliberations of the Guantánamo Review Task Force, for 5,233 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 U.S. 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 U.S. 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 U.S. 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
<https://www.closeguantanamo.org/Articles/419-After-First-Ever-Guantanamo-Visit-UN-Rapporteur-Finds-Dehumanized-Traumatized-Men-Subjected-to-Cruel-Inhuman-and-Degrading-Treatment-That-May-Rise-to-the-Level-of-Torture>,
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 U.N. 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
<https://www.closeguantanamo.org/Articles/418-U.N.-Condemns-Arbitrary-Detention-of-Guantanamo-Prisoner-and-Torture-Victim-Abd-Al-Rahim-Al-Nashiri-and-Calls-for-His-Release>
were issued by the Working Group on Arbitrary Detention, one of which
indicated
<https://www.andyworthington.co.uk/2023/04/30/un-condemns-21-year-imprisonment-of-abu-zubaydah-as-arbitrary-detention-and-suggests-that-guantanamos-detention-system-may-constitute-crimes-against-humanity/>
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
reenergize 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
<https://www.andyworthington.co.uk/2024/02/28/held-for-5150-days-since-being-approved-for-release-from-guantanamo-toffiq-al-bihani-and-two-ghosts-ridah-al-yazidi-and-muieen-abd-al-sattar/>
who have been refusing, since 2010, to deal with the authorities regarding
their release, a Kenyan
<https://www.andyworthington.co.uk/2024/03/06/held-for-800-days-since-being-approved-for-release-from-guantanamo-moath-al-alwi-zakaria-al-baidany-and-mohammed-abdul-malik-bajabu/>
whose government apparently doesn’t want him back, and a Somali
<https://www.closeguantanamo.org/Articles/435-Held-for-850-Days-Since-Being-Approved-for-Release-from-Guantanamo-Suhayl-Al-Sharabi-and-Guled-Hassan-Duran>
and a Libyan
<https://www.closeguantanamo.org/Articles/438-Held-for-550-Days-Since-Being-Approved-for-Release-from-Guantanamo-Ismail-Ali-Bakush-an-Insignificant-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
U.S. 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.
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