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The Shadowy Process Behind Guantánamo Bay Detainee Release Rulings

With the help of the Freedom of Information Act, we got a look at the secretive process of how Guantánamo detainees are evaluated for a second chance at freedom.

Guantánamo protest photo via AP Images

This article appeared in the April issue of VICE magazine. Click HERE to subscribe.

How does the Obama administration decide when a detainee can be released from the Guantánamo Bay detention facility? It relies on the decisions of parole boards, formally known in government circles as Periodic Review Boards (PRBs).

Although the PRBs were established by executive order in 2011, the first hearing did not take place until 2013, immediately after a mass hunger strike. The boards determine whether detainees being held indefinitely, after being deemed by the administration to be too dangerous for release and too difficult to prosecute, should be given a second chance at freedom.

The boards are composed of senior officials from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence. After a detainee appears before the board and is interviewed about life in Guantánamo, what he intends to do when released, and whether he holds any animosity toward the United States for holding him indefinitely without charge or trial, these officials then decide whether the detainee continues to pose a national security threat to the US.

If he does, the detainee continues to be held indefinitely until "the end of hostilities." If the board determines that he no longer threatens national security, he is "cleared" for repatriation to his home country or transferred to the custody of a foreign government. The entire process, for the most part, is shrouded in secrecy.

But a few declassified pages of documents from the State Department's Office of the Special Envoy for Guantánamo Closure shed some much-needed sunlight on the behind-the-scenes discussions revolving around the first PRB hearing, two years ago.

1. This part indicates that the State Department determined some of the information in this document must be withheld under Freedom of Information Act (FOIA) exemptions that protect privacy, national security information, and the foreign activities of the US.

2. This SECRET/NOFORN (S/NF) classification means the information is secret and cannot be shared with foreign nationals. Underscoring the sensitivity and intense secrecy revolving around discussions about Guantánamo detainee transfers and the PRB process, this line indicates that this memo was originally slated to be declassified on November 28, 2028. But because we filed a FOIA request, the State Department was forced to review the document and identify the portions that could be declassified and released now.

3. Clifford Sloan, then the special envoy for Guantánamo closure, wrote this memo to Secretary of State John Kerry. In it, he says that continued detention of Mahmud Abd al Aziz al Mujahid is no longer necessary "to protect against a continuing significant threat to US security." Notably, Sloan discusses that al Mujahid, the detainee who secured the first PRB hearing, is a Yemeni national and allegedly a former bodyguard for Osama bin Laden. The PRB heard his case and cleared him for transfer home if security conditions in war-torn Yemen improved, or if he were to be placed in a jihadist rehabilitation center, or sent to another country. However, more than two years after al Mujahid was cleared in November 2013, he is still being held captive at Guantánamo.

4. Citing a potential threat to national security, privacy, and discussions involving the foreign relations and/or activities of the United States, the State Department redacted this entire section, which would have explained why and how the PRB reached its decision.

5. Interestingly, this section states that if any PRB official disagrees with the decision, he or she can seek a review of the decision within 30 days, a detail that was previously unknown. Here, Sloan notes that he agrees with the board's decision to clear al Mujahid for transfer.

6. This is a very notable entry, and it is labeled "Sensitive But Unclassified" (SBU). Sloan says the pace of the hearings would increase to two or three per month. But that has not been the case. Since that first hearing in November 2013, less than 30 hearings have been held for about 37 detainees. The slow process of the hearings and the inability to transfer cleared detainees like al Mujahid have impeded President Barack Obama's goal of shutting down Guantánamo before he leaves office in 2017.

This article appeared in the April issue of VICE magazine. Click HERE to subscribe.