Earlier this month, the US government revealed that Guantánamo detainee Mustafa al-Aziz al-Shamiri was a low-level fighter, not the al-Qaeda courier and trainer the government initially claimed. Other detainees have alleged that they are the victims of “wrong place, wrong time” misunderstandings or circumstances of mistaken identities like al-Shamiri. So why isn’t the government doing more to review their cases?
The government file on al-Shamiri, quietly published on the website for the Guantánamo Periodic Review Secretariat, states: “It was previously assessed that [al-Shamiri] also was an al-Qaida facilitator or courier, as well as a trainer, but we now judge that these activities were carried out by other known extremists with names or aliases similar to [al-Shamiri’s].” This about-face highlights the ongoing uncertainty about the real identities and activities of Gitmo detainees, who have been repeatedly called “the worst of the worst,” while most have never been charged with any crime.
The government’s new position about al-Shimiri (who has been imprisoned at Guantánamo since June 2002) came out during his hearing in front of the Guantánamo Periodic Review Board (PRB). The PRB, made up of representatives from the Defense, Homeland Security, Justice, and State Departments, as well as the Joint Chiefs and Office of the Director of National Intelligence, is meant to assess if detainees pose an unmanageable threat to the United States or if they can be released.
President Obama created the PRB in a 2011 executive order. It was supposed to review the cases of all eligible detainees (those slated for indefinite detention) by March 2012, but because of bureaucratic infighting, reviews didn’t even start until 2013. The reviews have been limping along ever since, only holding 24 hearings for 21 detainees as of this post. Three detainees are waiting for decisions (including al-Shamiri) and 46 others are eligible for hearings.
Of the 18 detainees who have received decisions, 15 were cleared for transfer. Other than habeas hearings and finishing a military commission sentence, the PRB hearings offer a detainee’s best chance to be cleared to leave the prison. (Saying nothing of how difficult it is for a detainee to be released even after he has been cleared, a topic Steve Vladeck and Marty Lederman have discussed here before.)
The revelation of al-Shamiri’s mistaken identity raises the question of how long the Defense Department has known they got it wrong. Al-Shamiri was on the list of detainees slated for indefinite detention, judged to be a serious threat by both the Bush and Obama administrations. The new government file is dated September 25, 2015, but we have no way of knowing how long the government understood its mistake. The last publicly available report, the February 2008 assessment from Joint Task Force Guantanamo (JTF-GTMO), makes no mention of any mistaken identity. Then again, the veracity of JTF-GTMO’s detainee assessments has been called into question before.
Al-Shamiri’s case also raises questions about how unique his circumstances are. Many other Guantánamo detainees have made claims that the US government got it wrong when it captured them, or the more likely scenario, when they were handed over to the United States by the Pakistani government or warlords. And at least one Bush administration official admitted that the vast majority of those imprisoned at Guantánamo had nothing to do with the war against the Taliban or al-Qaeda.
Emad Abdalla Hassan is one high-profile example. A Yemeni who says he traveled to Pakistan in 2001 to study the Koran, he was captured by Pakistani authorities at a guest house. The Pakistanis transferred him to US custody, where he was interrogated. According to Hassan, the interrogator asked him if he had any connection to al-Qaeda, and he answered, truthfully, that he did. But the “al-Qaeda” he was referring to was really Al-Qaidah, a village in Yemen with the same name as the terrorist group. Based on this information, he was shipped to Guantánamo, where he languished until June 2015.
There are many stories like this among the remaining detainees. One, an Afghan named Haji Wali Mohammed, says he was an unsuccessful money exchanger antagonized by the Taliban. According to his account, when he couldn’t afford to pay the Pakistani intelligence service a bribe, he was arrested and given to the Americans. He arrived at Guantánamo in May 2002 and the Obama administration has designated him for indefinite detention.
Another, Mauritanian detainee Mohamedou Ould Slahi, wrote an entire book (Guantánamo Diary) about how, according to him, the US government mistook his connection to al-Qaeda members as a serious operational role in the organization. Slahi has also been at Guantánamo since 2002 and is also designated for indefinite detention.
The Obama administration’s Guantánamo Review Task Force cleared Hassan for release in 2010, and he waited until 2015 for release. The Periodic Review Board has reviewed neither Mohammed nor Slahi, nor does the government have any charges pending against them.
Which leaves us to wonder: Who else at Guantánamo isn’t who the government thought they were? Who else is there because of a mistranslation? Who else has the United States held without charge or trial for more than a decade because of a mistake?
Because of the overwhelming secrecy surrounding everything to do with the prison, we may never know for sure. One way to bring some of this information into the light is to actually conduct Periodic Review Board hearings for the 46 eligible detainees, the majority of whom have been at Guantánamo for more than a decade. But as of now, only three more hearings are scheduled. The hearings should be ramped up, and the Obama administration needs to make them a priority.