On September 21, as part of a court case, the Justice Department released the names of 55 of the 86 prisoners cleared for release from Guantánamo in 2009 by Barack Obama’s Guantánamo Review Task Force, which consisted of officials from key government departments and the intelligence agencies. The Task Force’s final report was issued in January 2010.
Until now, the government has refused to release the names, hindering efforts by the prisoners’ lawyers — and other interested parties — to publicize their plight.
The rationale for that policy was explained in June 2009 by Ambassador Daniel Fried, the State Department’s Special Envoy for the Closure of the Guantánamo Bay Detention Facility, when he stated that “indiscriminate public disclosure of the decisions resulting from reviews by Guantánamo Review Task Force will impair the U.S. Government’s ability effectively to repatriate and resettle Guantánamo detainees” under the executive order establishing a review of the prisoners’ cases. That order was issued on Obama’s second day in office in January 2009, at the same time that he promised to close Guantánamo within a year.
Fried also explained that having the government solely in charge of the negotiations for resettlement was the best way forward, because, if prisoners’ lawyers became involved, “it could confuse, undermine, or jeopardize our diplomatic efforts with those countries and could put at risk our ability to move as many people to safe and responsible locations as might otherwise be the case.”
In the filing last Friday, officials explained why they had now changed their minds:
In the over two years since the Task Force completed its status reviews, circumstances have changed such that the decisions by the Task Force approving detainees for transfer no longer warrant protection. The efforts of the United States to resettle Guantánamo detainees have largely been successful — they have resulted in 40 detainees being resettled in third countries because of treatment or other concerns in their countries of origin since 2009. In addition, 28 detainees have been repatriated to their countries of origin since 2009. Consequently, the diplomatic and national security harms identified in the Fried Declaration are no longer as acute. In Respondents’ view, there is no longer a need to withhold from the public the status of detainees who have been approved for transfer.
Advocates for an end to the ongoing injustice at Guantánamo responded positively to the news. Zachary Katznelson, senior staff attorney on the national security project of the American Civil Liberties Union, which had submitted a Freedom of Information Act request for the release of the names, said, “Today’s release is a partial victory for transparency, and it should also be a spur to action.” He added, “These men have now spent three years in prison since our military and intelligence agencies all agreed they should be released.”
It is indeed time that they were released, as many of them were initially cleared for release five or six years ago by military review boards under the Bush administration.
In June this year, I produced a report, “Guantánamo Scandal: The 40 Prisoners Still Held but Cleared for Release at Least Five Years Ago,” in which I identified 40 prisoners cleared for release under George W. Bush, but never freed, and 28 of those men turned up on the list released by the Justice Department. Most of the 28 were cleared for release in 2006 or 2007, but the list also included one man — Saleh al-Zabe (or al-Thabbi), a Yemeni — who was cleared for release on September 3, 2004.
The others who were cleared under Bush — and again by Obama’s Task Force — include 12 more Yemenis, the last five Tunisians in Guantánamo, three Algerians, a Saudi, Mohammed Tahamuttan (the last Palestinian), Umar Abdulayev (the last Tajik), the last three Uighurs (Muslims from China’s Xinjiang province), and Shaker Aamer, the last British resident in the prison.
Of the 27 prisoners not originally cleared under Bush, 13 are Yemenis, four are Syrians, and four are Afghans. There is one each is from Algeria, Libya, Mauritania, Morocco, Sudan, and the United Arab Emirates.
For the most numerous of these men, the Yemenis, the problem is that, just before the Task Force issued its final report in January 2010, a Nigerian named Umar Farouk Abdulmutallab, recruited in Yemen by an offshoot of al-Qaeda, tried and failed to blow up a plane bound for Detroit with a bomb in his underwear. As a result of that foiled plot, Obama responded to a wave of hysteria by announcing a moratorium on releasing any cleared Yemenis from Guantánamo. That order remains in place two years and eight months later, even though it is a monstrous injustice to continue holding men cleared for release and to pander to populist fear-mongering by insinuating that the very fact of being Yemeni is tantamount to being a terrorist — or, at the very least, a terrorist sympathizer.
The Task Force had cleared 29 Yemenis for release and had placed a further 30 in a category they dreamt up without consulting Congress, which they termed “conditional detention.” The Task Force declared that those in that category could be released if there was an improvement in the security situation in Yemen. After the failed bomb plot, however, the release of the other 29 Yemenis was also halted, and only one has since been freed. It is certain, therefore, that all the Yemenis who were supposed to be freed when Umar Farouk Abdulmutallab boarded a plane with his useless bomb are on this list. It is, moreover, probable that the 31 names of cleared prisoners not included by the government feature the 30 Yemenis consigned to “conditional detention” by the Task Force.
Mentioning the fate of the cleared Yemenis — and the indecency of holding cleared men on the basis of the guilt supposedly attached to their nationality — has been taboo in the mainstream American media since Obama issued his moratorium in January 2010. But the death of another cleared Yemeni at Guantánamo on September 8 at least prompted the Los Angeles Times to publish an editorial questioning the moratorium.
The man in question, Adnan Latif, had mental health problems and had been cleared for release under Bush and by Obama’s Task Force. He had also won his habeas corpus petition, but the decision had been overturned by the appeals court in Washington, D.C., which has gutted habeas corpus of all meaning for the Guantánamo prisoners. Failed by all three branches of government, he died at Guantánamo nearly six years after a military review board first recommended him for release.
It is notable that, although the Task Force had cleared him, no attempt was made to liaise with the Justice Department, which, logically, should not have challenged his habeas corpus petition and should not have appealed when he won. Sadly, however, that approach was not pursued, and Latif was not the only victim. Under Obama, the habeas petitions of nine of the 55 cleared prisoners were challenged. The petitions of seven were later denied, and in two other cases, when the prisoners won, the Justice Department appealed and won on appeal.
In the Los Angeles Times, the editors, addressing what they called “America’s detainee problem,” noted that “the administration needs to make more of an effort to arrange the repatriation or resettlement of individuals no longer considered a threat.” It added, “That would probably mean lifting the blanket ban on transfers to Yemen.”
That carefully worded suggestion is far from a ringing endorsement of the need to get rid of the moratorium, but it is some sort of progress and one hopes it will have been noted in the corridors of power. To avoid the deaths of any more cleared men, and to do something to rescue his appalling record on the treatment of “war on terror” prisoners inherited from the Bush administration, Barack Obama needs to release all the Yemenis without further delay, and to do the same with the 29 others.
Shaker Aamer, the Saudi-born British resident whose wife and four children await his return in south London, could be sent home tomorrow. So also could the five Tunisians, who could not be freed before the fall of President Ben Ali in January 2011, as they had all been sentenced in absentia in show trials and faced abuse on their return. Some of the others can also probably be freed to their home countries, but if it is unsafe for them to be returned home because they face the risk of torture or other ill treatment, they can join the other prisoners who need new homes, and who, if no willing and appropriate countries can be found, should be rehoused in the U.S. — the Algerians, Umar Abdulayev, Mohammed Tahamuttan, the Syrians, and the three Uighurs, who are the last of 22 Uighurs in total, the rest of whom were resettled in various countries between May 2006 and April 2012.
In conclusion, the release of this document, which pierces the veil of secrecy that has surrounded the men since January 2010, is important, and after the death of Adnan Latif, it should lead to the release of all the cleared prisoners, so that Adnan Latif’s cruel and unjust death at Guantánamo was not in vain.