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Initial GTMO PRB decisions now completed, with 29 remaining uncharged and uncleared law-of-war detainees

Last week the Presidential Review Board issued the final two decisions from its initial hearings of remaining GTMO detainees who were not already charged or cleared for transfer:  the PRB cleared one detainee (Jabran al Qahtani, ISN # 696) for transfer to Saudi Arabia under certain conditions and determined that continued law-of-war detention is warranted for the other detainee, Said Salih Said Nashir (ISN # 841), because such detention remains (in the words of the President’s order) “necessary to protect against a significant threat to the security of the United States.”

So as things stand, just over seven weeks before the end of President Obama’s term, 60 detainees remain at GTMO:

— Three (3) detainees have been convicted, or pled guilty, in military commission proceedings: Ali Hamza al Bahlul is serving a life sentence, and he is likely to soon petition the Supreme Court to review his lone remaining conviction.  Ahmed Haza al Darbi is serving a 15-year sentence that began in 2014.  Majid Khan pled guilty but his sentencing hearing is postponed until at least February 29, 2018.

— Seven (7) more detainees await three trials before military commissions: (i) Abd al Rahim al Nashiri, (ii) Abd al Hadi al Iraqi, and (iii) the five defendants charged with involvement in the 9/11 attacks: Khalid Sheik Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi, and Ammar al Baluchi.

— Twenty-one (21) detainees have been cleared for transfer–twelve Yemenis, three Afghans, and one detainee from each of Algeria, Morocco, Russia, Saudi Arabia, Tunisia, and the UAE.

— The PRB has, for now, determined that continued law-of-war detention is warranted for the remaining twenty-nine (29) detainees, of whom 13 are Yemenis.

Thus, if the government is able to transfer the 21 already cleared detainees, there would be, at most, 29 detainees remaining at GTMO who have not been charged with offenses in the military commissions system.

Moreover, there remains at least some chance that some of those 29 might be transferred, too, by virtue of PRB proceedings subsequent to the initial reviews.  The results of follow-up “full reviews” of three detainees are pending (ISN Nos. 28, 508, 522), and three others will have “full review” hearings in the next 15 days or so.  (See generally this “Full Review” web page.)  Full reviews for at least two other detainees–Saifullah Abdullah Paracha (ISN # 1094) and Sharqawi Abdu Ali Al Hajj (ISN # 1457)–have been ordered after “file reviews,” but have not yet been scheduled.  As of today “file reviews” of four detainees will have been completed but not decided (ISN Nos. 242, 1017, 1453 and 10025); and seven other “file reviews” are scheduled (ISN Nos. 63, 682, 685, 708, 1460, 1463, and 3148).  (See generally this “File Review” web page.)  I believe that leaves about ten detainees who are still awaiting scheduling of their file reviews (ISN Nos. 569, 1456, 1461, 10016, 10017, 10019, 10021, 10022, 10023, and 10029).

For why the President lacks the authority to go further, and to “close GTMO” by transferring the final two or three dozen detainees to the U.S., see my three-part series beginning here.

[Thanks to Brian Foster of Covington & Burling for maintaining his constantly updated GTMO status charts.]

 


About the Author

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).