Pentagon prepares review panels for 71 Guantánamo detainees

07/21/2013 1:01 PM

02/09/2014 10:10 PM

Seventy-one Guantánamo captives will get parole-board-style hearings at the U.S. Navy base in Cuba, the Pentagon said Sunday, refusing to say when the panels will meet, whether the media can watch and which of the long-held captives will go first.

The disclosure followed a flurry of emails sent after 10 p.m. Friday by Pentagon bureaucrats notifying attorneys for some of the 71 captives that preparations were underway to hold the so-called Periodic Review Boards ordered by President Barack Obama years ago.

Retired Rear Adm. Norton C. Joerg, a former senior Navy lawyer during the Bush administration, advised the lawyers 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,” Joerg said.

Joerg offered no explanation for the late-night notices that came amid a long-running hunger strike by prisoners at the base in Cuba over their conditions of detention.

As of Sunday, the military said 46 detainees were sufficiently malnourished to require nasogastric feedings, currently conducted after dark in consideration of Ramadan.

Once the daily fasting hours are over, according to prison spokesmen, Navy medical forces offer to let a force-fed hunger striker drink a nutritional supplement before shackling him into a chair, snaking a tube up his nose and into his stomach to deliver the drink.

The International Committee of the Red Cross had been urging the Obama administration to get on with the reviews.Still, neither Joerg nor a Pentagon spokesman, Army Lt. Col. Todd Breasseale, would not say if the first hearing might be held by mid-September and whether there’s a target day for completion. Breasseale would only say the first would be held “when conditions dictate.”

Also left unclear is whether the panel members will go to Guantánamo to hear from the captive, or watch by a video-link between the prison and Washington, D.C., that already exists for federal judges to hear from prisoners in habeas corpus petitions. The six members of the panel represent the Pentagon and separately the Joint Chiefs of Staff, the Director of National Intelligence and the Departments of State, Justice and Homeland Security.

Breasseale did say that Joerg was processing 71 of the prison’s 166 captives for reviews. They include:

•  46 captives currently held as “indefinite detainees,” a category created by an Obama Task force in 2010 of captives considered too dangerous to release but for whom there was no evidence that could justify a criminal trial;
•  25 other captives who in 2010 were listed as candidates for trials by military commissions or civilian courts.

Since then, the chief war crimes prosecutor, Army Brig Gen. Mark Martins, has decided to pursue fewer cases, citing a federal court ruling that “providing material support for terrorism” is not a war crime applicable to Guantánamo’s current detainee population.

“Our number may be reduced if charges are referred to a military commission,” Breasseale said in response to a series of questions to Joerg on Saturday. “Likewise, our number could increase if convictions are overturned or charges are withdrawn.”

The Pentagon plans to deliver notices to board-eligible detainees at Guantánamo this week, according to one attorney who was contacted by the Defense Department and asked if he would participate in the process. The attorney spoke to the Miami Herald on condition he not be identified in this article.

Breasseale would not say whether reporters will be allowed to watch, or photograph, the hearings even if the detainee desires media coverage.

Pentagon officials also would not discuss specific cases. But, based on the categories, the 71 men whose files will be reviewed include five members of the Taliban whose release is sought as part of an Afghanistan peace accord.

The so-called Taliban elders are “indefinite detainees” at Guantánamo along with seven other Afghans, 26 Yemenis, three Saudis, two Kuwaitis, two Libyans, a Kenyan, a Moroccan and a Somali.

Other captives who currently could argue for release as once-considered candidates for trial, include:

•  A 42-year-old, one-eyed prisoner known as “Abu Zubaydah” who was one of the CIA’s first war on terror prisoners. He’s Palestinian Zayn al Abdeen Mohammed al Hussein whom agents captured critically wounded in Pakistan, held naked in a dog cage and waterboarded 83 times to find out what he knew about al-Qaida before delivering him to Guantánamo in 2006.
•  An Indonesian man named Riduan Isomuddin, 49, better known “Hambali,” whom the CIA profiled a decade ago as a senior leader of Southeast Asia’s Jemaah Islamiya, the Islamic Group blamed for the 2002 Bali bombings that killed over 200 people. Hambali was captured in Thailand in 2003 but has never been charged with a crime.
•  Saudi Mohammed al Qahtani, 37,who was considered at one time for prosecution as the wannabe 20th hijacker in the Sept. 11 plot. Agents subjected him to such cruel interrogation at Guantánamo that a senior Pentagon lawyer in the Bush years concluded that the U.S. tortured him, and forbade his inclusion in the 9/11 death-penalty tribunal.

Of Guantánamo’s 166 captives, six detainees are awaiting death-penalty trials and three are convicted of war crimes. So they don’t get parole hearings.

Another 86 are theoretically cleared for release, and also ineligible for the reviews. But they have no release date because the Obama administration has been unable or unwilling to issue waivers to overcome Congressional restrictions on releases.

So the flurry of emails over the weekend produced some skepticism among Guantánamo defense attorneys.

“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,” said Ramzi Kassem, law professor at the City University of New York and attorney for several Guantánamo prisoners.

The panels follow the work of a federal task force President Barack Obama ordered in 2009 to sift through Guantánamo detainee files.

That process produced a list of 48 indefinite detainees in January 2010. But two of those men have since died — one had a heart attack, according to the prison, and the other was found hanging by a bed sheet in a communal prison’s recreation yard in what the military said was a suicide.

So now there are 46 indefinite detainees. Although that’s the same number of hunger strikers designated for forced-feedings on Sunday, a Miami Herald project to identify those being tube-fed at Guantánamo has revealed a cross-section of captives, including those cleared for release.

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