Guantánamo limbo: Dozens still waiting for first review Obama ordered in 2011

Mustafa al Shamiri spent most of his years at Guantánamo wrongly described as an al-Qaida trainer and facilitator, a captive of consequence, until his first parole-style hearing revealed an astonishing admission. An intelligence review “discredited” the most damning parts of his prison dossier in his 14th year of U.S. military detention. He was mistaken for someone else with a similar name.

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Within weeks, the Periodic Review Board concluded he was a low-level fighter, not a leader, who could leave Guantánamo, preferably to an Arabic-speaking country to ease him into a new life. Today, two months after that decision, the 37-year-old Yemeni is still at Guantánamo, awaiting a country to take him.

But he is one of the lucky ones. Another 40 captives who also were deemed ineligible for release in 2009 have yet to have their fate decided by the board. Can they go or must they stay?

It wasn’t supposed to work that way. When President Barack Obama ordered the Defense Department on March 7, 2011, to set up inter-agency reviews for Guantánamo detainees, something the International Red Cross had long advocated, those detainees not charged with a crime and not cleared to go with security arrangements were supposed to get a first hearing within a year.

Now at the current rate, says attorney Shane Kadidal of the Center for Constitutional Rights, “it seems utterly implausible that they can complete these hearings before the end of the president’s term.” Kadidal has gone before the board once with a client who was ultimately cleared to go.

And these are baseline hearings that decide not that a captive can leave — just whether the State Department can start looking for a country to take him in. Once a destination is arranged, a second intelligence analysis ensues to determine whether the security arrangements offered by the would-be host country are robust enough.

A Pentagon spokesman, Navy Cmdr. Gary Ross, said all Guantánamo detainees entitled to an “initial hearing” should get one “by the end of the fall,” which is Dec. 20. After a hearing the board decides each case, a process that in a Yemeni’s case has gone on eight months.

A Justice Department lawyer, Joseph Folio, told a federal judge in November that the process was hampered by the need to create a bureaucracy to handle Obama’s executive order and complicated by the participation of multiple agencies in it.

As for the inertia, Kadidal says some people in the Pentagon may have purposely slowed the process because they don’t want to give up on holding captives at Guantánamo. Not that they’re wedded to keeping these specific last 91 detainees, but instead want to preserve the military’s authority to hold detainees in an offshore prison, if unintentionally but inevitably “perpetually trapped in a legal quagmire that does not clean itself up.”

Or as Kadidal put it: “Bureaucracies have their own sort of agendas.”

Government officials have blamed a variety of factors, including the complicated task of combing through intelligence agencies files — sorting fact from fiction in a place that in some instances may not have gotten it right for years, as the story of Shamiri illustrates.

As anonymous as Shamiri was before his hearing, Mohammed al Qahtani is infamous.

At Guantánamo he was suspected of being the would-be 20th hijacker in the Sept. 11 plot and interrogated in such a ruthless and troubling fashion that someone leaked his interrogation log to Time magazine in 2005. By 2008, a senior Pentagon official rejected his prosecution in the joint trial of five men accused as 9/11 plotters.

We tortured Qahtani,” Pentagon war court overseer Susan Crawford told journalist Bob Woodward in early 2009. Yet a federal task force sorting through the Guantánamo files for the new Obama administration included Qahtani on a Jan. 22, 2010, list of trial candidates.

Now 40, the Saudi citizen has never been charged. And he only just recently was assigned a Periodic Review Board hearing — on July 14 — to decide whether he’ll present a significant continuing security threat to the United States. If so, because he’s not charged, he could be added to the list of indefinite detainees — forever prisoners — ineligible for release.

“There hasn’t been the urgency that one would expect,” for something that Obama ordered done, said Kadidal, one of the lawyers representing Qahtani. That was the president’s second executive order — to get something related to Guantánamo done within a year. The first, issued Jan. 22, 2009, was to sort through the captives’ files and close the detention center. On that day the prison held 242 war-on-terror captives. Today there are 91.

Of the 24 detainees who have gotten full board hearings, 20 men once considered trial candidates or forever prisoners have been approved for release, with security arrangements. Just four who were reviewed were still considered too dangerous to let go. Forty captives have yet to get their first hearings. A new evolving chart prepared by the Miami Herald lays these out.

While the board hasn’t finished reviewing all the forever prisoners, it has begun looking at men once considered as possible candidates for trial who are still not charged. Among them: Diarist Mohamedou Ould Slahi, 45, whose lawyers sued in federal court to get him a hearing.

Justice Department attorney Folio said at a Nov. 24 federal court hearing that Slahi “remains in line, like dozens of other detainees at Guantánamo, to receive a PRB hearing.” The judge deferred to the authority of the executive, but the Mauritanian captive got a June 7 date, anyway.

In one mysterious instance, the board heard from “forever prisoner” Salman Rabeii, 36, a Yemeni, eight months ago but has yet to decide his case. In contrast, the board last week cleared fellow Yemeni detainee Ayyub Ali Salih, 37, in five weeks.

American University law professor Steve Vladeck, who routinely studies the board decisions, is likewise a critic of the glacial pace of the process. He blames, in part, “internal resistance and obstructionism” by bureaucrats who don’t want the prison closed.

But what Vladeck sees as remarkable about the enterprise is not how few have gone through the process but that the majority of those evaluated actually have been approved for release — after spending years on a list deemed too dangerous to be let go.

In that regard, the process appears to have vindicated critics of Guantánamo who argue U.S. intelligence was overwhelmed or ignorant in assessing its captive population in the first dozen or so years. Some who probably should still be there were let go during the years when the Bush administration mostly repatriated about 530 captives, he says. And some who are still there probably could have been released years ago.

“From a politics and rhetoric perspective we should be past the point where anyone can say the 91 folks at Guantánamo are ‘the worst of the worst,’” Vladeck says. “A handful of them might be. But plenty of them aren’t. That’s not a matter of speculation. It’s the president’s own PRBs that are saying that.”

Defenders of the process say the board’s bureaucracy picked the most straightforward cases first, tipped the scales toward those likely to be allowed to go. Vladeck says that’s even more damning. “Even if they picked the easy cases first, what does it say that there are ‘easy cases’ at Guantánamo at this point in time? After 14 years in the blink of an eye they get cleared by the PRB.”

Carol Rosenberg: 305-376-3179, @carolrosenberg

See our chart of the ongoing Periodic Review Board process: Who’s been cleared to go and who’s still waiting.