Why Are Prisoners Who Have Been Cleared for Release Still in ​Guantánamo?

In order for a prisoner to be cleared, every single US government agency with a stake in national security affairs has to sign off on his release.

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10 November 2014, 10:00am

NICHOLAS KAMM/AFP/Getty Images

Ramzi Kassem is an associate professor of law at the City University of New York. He directs the Immigrant and Non-Citizen Rights Clinic, which represents prisoners at Guantánamo Bay, Bagram, and elsewhere. One of his clients is Shaker Aamer, who has contributed writing to the Behind the Bars series.

To the uninitiated, it may seem incomprehensible that the majority of the 148 prisoners remaining at Guantánamo Bay have been cleared for release by the US government for years, yet continue to languish in indefinite imprisonment without charge or fair process.

However, to those who have followed  the developments at Guantánamo with distant but nonetheless discerning interest, and to those who know the issues intimately, like my students and colleagues, or the dozens of other lawyers who have represented the prisoners on a volunteer basis for years, the apparent paradox is only par for the course.

Guantánamo is seldom about substance and very often about perception and politics. The prison's continuing existence provides what is possibly the most powerful illustration of that principle. The president did not wish to spend scarce political capital on closing Guantánamo, nor did he want to risk exposing his flank to criticism from political adversaries. To Congress, Guantánamo was too lucrative a political symbol to be relinquished. So Congress threw up roadblocks while the White House dithered.

The predicament of the cleared Guantánamo prisoners does not escape that cardinal rule of the Gitmo-verse placing politics over sound policy, letting perception trump substance. And, under that light, the seeming contradiction raised by the fate of the majority of Guantánamo prisoners begins to fade.

To fully appreciate this reality, a little historical background is necessary. For starters, review processes are not new to Guantánamo – since the prison's inception in 2002, there has been a succession of alphabet soup mechanisms designed to evaluate prisoners' "files".

Bush, for instance, had his Administrative Review Boards. The ARBs were military panels tasked with reviewing mostly classified materials to determine whether prisoners could be released. The panel would also question any prisoner who was willing. Many were not, as word quickly got around the prison that the ARBs were a charade. Indeed, a prisoner before the ARB was not allowed to fully see accusations against him, let alone the classified evidence that supposedly justified his detention, and he did not have the support of counsel.

Still, many prisoners were cleared for release by the ARBs. Among them is Shaker Aamer, a contributor to this series and a man whom my students and I represent. Cleared by the ARB in 2007, Aamer is the last British resident remaining at Guantánamo.

With Obama came the Guantánamo Review Task Force. The GRTF was charged with a comprehensive review of all prisoners and it performed most of its work in 2009. Aamer was once again cleared, as was another of my clients, Abdelhadi Faraj, a Syrian, along with two other detainees who contributed to this series, Emad Hassan and Younous Chekkouri. In the end, a solid majority of the total Guantánamo prisoner population was cleared as well.

Those clearances carry the weight of the entire US national security establishment. To say that they were cleared means that every single US government agency with a stake in national security affairs has signed off on their release. This includes the Department of Justice (which oversees the FBI), State, Defense and Homeland Security, alongside the Office of the Director of National Intelligence (which covers the CIA) and the Joint Chiefs of Staff.

But many of these cleared men remain at Guantánamo today. 

Reconciling these two facts requires an unblinking look at the politics that drove the creation of – and set limits for – these review mechanisms.

Both the Bush-era ARBs as well as Obama's GRTF were set up to project the appearance of process amid charges by rights watchdogs and the international community that the United States was holding men offshore in Cuba for years without trial or fair process. In addition to the basic window-dressing function that both entities were intended to fulfill, the Obama Task Force was also meant to provide some cover for prisoner releases. Releasing a GRTF-cleared prisoner, the thinking went, carried the imprimatur of the entire security establishment. It should not, therefore, provide as inviting a target to partisan second-guessing.

But the scheme's fatal flaw was that neither the ARBs nor the GRTF were granted the power to release prisoners. They were designed primarily to relieve or deflect political pressure, to placate various opponents or critics, not to concretely implement policy.

The resulting power vacuum – created by toothless review bodies – was far too easy to exploit. Although the Task Force has the authority to clear a prisoner for release, its inability to effectuate its own findings cedes control over actual outcomes to the political imperatives of the day.

Aamer, for instance, is a twice-cleared prisoner who is not charged with any crime. The government of the United Kingdom, speaking through successive prime ministers and foreign ministers, has officially demanded his return and his reunification with his family in London, British subjects all. This is not just any country – it is the United States' oldest, closest and most trusted ally. Surely, the United Kingdom can be relied upon to mitigate any concerns the United States might have with Aamer's release.

But because the Task Force's decision to clear him for release is basically aspirational and non-binding, occult political forces have free rein to sabotage it, notwithstanding both countries' stated policy. Those forces may include officials in the UK security establishment who have no interest in seeing him returned home where he will be at greater liberty to disclose what he knows firsthand about British involvement in abusive interrogations in Afghanistan.

Emad Hassan and other cleared Yemenis like him are victims of another species of pernicious politics. Concerns about security lapses in Yemen, highlighted by the Umar Farouk Abdulmutallab case in late-2009, quickly morphed into a moratorium on prisoner transfers to Yemen owing to alarmist rhetoric by elements in the political and security spheres. Even since that moratorium has been lifted, the perception that no Guantánamo prisoners should be returned to Yemen under any circumstances retains its vitality.

It doesn't seem to matter that two Yemeni prisoners – including one of my clients, Amin al-Bakri – were repatriated this summer from  Guantánamo's less known twin, the US military prison at Bagram, Afghanistan. At the time of writing, no great calamity had befallen either Yemen or the United States as a result.

With the 2014 mid-term election yielding firm Republican control of both houses, the fate of planned efforts to reduce the prisoner population in 2015 may be sealed.

The next two years will prove the ultimate test of Obama's resolve to close Guantánamo. In the face of likely opposition, he would have to do what his predecessor did when he opened the prison and when he later released the majority of its nearly 800 prisoners. Obama would have to act – boldly and unilaterally – by vetoing obstructionist legislation and taking lawful executive action in furtherance of his longstanding policy objective. That is, if Obama cares enough about closing Guantánamo to stick his neck out.