After deliberating for more than a year, Trump administration officials appear split over whether to continue detaining at least one of the remaining prisoners at Guantanamo Bay, the latest indication that process of reviewing detainee cases has come to a near standstill under President Donald Trump.
Omar Muhammad Ali Al-Rammah, a Yemeni who was captured in the Republic of Georgia and has been held at the offshore prison in Cuba since 2003, has been waiting for 16 months to hear whether the Periodic Review Board ― the interagency panel that oversees detainees’ parole-style hearings ― has cleared him for release.
Al-Rammah last appeared before the board in February 2017. In the past, the panel has usually decided on a recommendation one or two months after a hearing. The Pentagon declined to say why it is taking so long to make a decision in Al-Rammah’s case. But the lengthy delay indicates a disagreement between government officials over whether the Yemeni should be cleared for release.
The PRB is made up 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. Detainees are expected to tell the officials they feel remorse for whatever the government has accused them of doing, and describe their plans for the future. Then, the officials have to reach a unanimous agreement over whether to clear the detainee for release. But even after they make a decision, their bosses — the heads of those agencies — can object to the decision and request a meeting to reexamine the case.
The heads of the agencies can request a review within 30 days of the PRB’s decision. They will also step in if the PRB can’t reach a consensus, Sarah Higgins, a Pentagon spokeswoman, wrote in an email. “I can’t share at this time which scenario is holding up the final determination,” she wrote. “However, [the Defense Department] is committed to the PRB process.”
It is unlikely that the PRB has failed to reach a consensus after 16 months of deliberating. “My speculation is that some of these men have been approved for transfer by the board, there has then been an objection, and the principals committee has not met to resolve that objection — or has met but has not resolved it,” said J. Wells Dixon, a senior staff attorney at the Center for Constitutional Rights who has represented Guantanamo prisoners.
Al-Rammah is one of four detainees at Guantanamo who have been waiting months for a decision since their PRB hearing: Abdul Rabbani Abd al Rahim Abu Rahman, a Pakistani, appeared before the panel on Feb 27, 2018. Moath Hamza Ahmed Al-Alwi, a Yemeni, was heard on March 27, 2018. The hearing of Uthman Abd al-Rahim Muhammad Uthman, also from Yemen, took place about a month later.
Under Trump, their situation has been caught up in a political fight over what to do with 40 men who remain at Guantanamo.
Trump campaigned on keeping all of the Guantanamo detainees imprisoned and reversing President Barack Obama’s policy of closing the facility. While the administration kept in place the process of the review hearings — one of the only chances Guantanamo prisoners get to make the case for their freedom — it’s unclear whether the process still serves any purpose. The Trump administration has refused to release five prisoners who were cleared for release before Trump entered office.
That has put the members of the PRB panel in a politically fraught situation. If the officials were to clear a detainee and the military refused to release him, it would only further highlight the incoherence of the president’s Guantanamo policy. It’s perhaps unsurprising, then, that the panel has become barely operational.
Only nine detainees have had hearings before the board since Trump entered office. Four of them have received decisions; none of them were cleared for release.
The panel is supposed to make a “prompt determination” after a PRB hearing and provide the detainee with a written summary of the decision in the detainee’s language within 30 days of reaching the decision. The board often decides whether to clear the detainee for release or continue holding him without charge immediately after the hearing ends. The 2011 executive order that established the process didn’t specify what constitutes a “prompt determination.”
Detainees’ lawyers typically start to assume that their client’s case has been kicked to the heads of the agencies when the board hasn’t delivered a decision within several months of the hearing.
Defense lawyers don’t have a good way of challenging PRB delays. While the 16-month delay in Al-Rammah’s case is certainly not prompt, urging the board to speed things up would risk pushing them into making the easier recommendation — that he continue to be detained.
And even if Al-Rammah is cleared for release, there is no sign he’ll be freed as long as Trump is in office. But keeping the PRB system in place, even in its neutered form, gives the Trump administration a nominal defense when critics accuse it of indefinitely detaining prisoners without due process.
“It is the only thing that the government can point to to show that there is any sort of review that is occurring at Guantanamo. It is what the government hangs its hat on to fight off habeas claims,” Dixon said, referring to legal challenges over the lawfulness of a person’s detention. “It is a meaningless process for all practical purposes.”