Quasi-public Guantanamo Detainee Hearings Start Tomorrow

On Tuesday morning, select members of the media and human rights groups will, for the first time, be allowed to observe a portion of a Periodic Review Board hearing for a detainee imprisoned at Guantanamo Bay. While the opportunity to view the new PRBs, as they’re known, is something many of us have been seeking for months, it’s hard to get too excited about what we’ll see Tuesday morning, in the case of Yemeni national Abdel Malik Ahmed Abdel Wahab Al Rahabi.

In fact, to call it a “hearing” at all is a bit of a stretch:  what observers will see are screened, scripted statements read by: 1) a representative of the government; 2) a U.S. military officer assigned to represent the detainee, and/or the detainee’s pro bono lawyer; and 3) the government-cleared statement of the detainee himself.  We’ll be watching this on a screen set up in a viewing room in Crystal City, Virginia.  Meanwhile, the review board itself, made up of representatives from six different government entities, will be sitting in an office Washington, D.C.; the detainee and his representatives will address the board via a closed-circuit television screen from a conference room in Guantanamo Bay.

It’s great that modern interactive video technology allows all this. But really, all we’ll be watching is the government-approved script of a play read by the relevant actors, one of whose freedom is on the line.  We won’t be allowed to hear what al Wahab, imprisoned for the last dozen years at Guantanamo after Pakistani authorities seized and turned him over to the Americans in December 2001, might say extemporaneously, or in response to any of the board members’ questions. Parts of that may be available, eventually, to those interested enough to check back on the review board website, weeks later, after all six agencies have reviewed, redacted and cleared the transcript of the detainee question-and-answer period for release.

Needless to say, it’s all a bit anti-climactic, especially for the news media, which understandably prefers to report on an event in real time rather than piecemeal over the course of weeks or months.  Still, it’s an improvement over past practice, when none of the proceedings were public, whether the material considered by previous review boards set up by President Bush, or by President Obama’s Guantanamo Detainee Task Force, created in 2009. As a result, the government’s reasons for continuing to detain any particular individual at Guantanamo – and the facts underlying those conclusions – has long remained somewhat of a mystery.

To be sure, we may not learn a whole lot about what underlies the government’s reasoning in this first “open” hearing, either.  That’s because after the scripted statements are read and the video cameras are turned off, not only is the detainee’s questioning shielded from public view, but he’s forced to leave the room and the remainder of the proceeding is closed for a classified session.  Just how much of the substance of the hearing will be deemed classified remains to be seen.

The hearing itself is supposed to focus not so much on what the detainee did in the past, in some cases a dozen years ago, but what he’s likely to do if he’s released from Guantanamo and sent home.  In that sense, the PRB functions more like a parole board than a judicial procedure.  Its accuracy and effectiveness therefore depend heavily on what evidence the detainee’s representatives can gather in his favor.

For example, does the detainee have a stable, law-abiding family to return to, with friends and relatives committed to take him in and steer him on a safe path?  Will he return home to a secure community and stable job, so he can care for himself and his family? Or, is he likely to land in desperate circumstances and fall prey to radical extremists promising to reward him handsomely for joining their cause?

These are the kinds of questions the PRB is supposed to be considering; it remains to be seen how much, if any, of those considerations we’ll get to hear about.  I know when I watched similar proceedings at the Bagram prison in Afghanistan, known there as Detainee Review Boards, the unclassified sessions addressed little evidence of anything and made it impossible to know what the board was ultimately relying upon in its ruling. (Those rulings were never made public, either, though interestingly, we were allowed to view the detainee’s unscripted statement and answers to the board’s questions.)

There are a few significant improvements in the Guantanamo PRBs, compared to their counterparts in Afghanistan, however.  For one thing, we’ll eventually get to see the final decision.  So far that hasn’t meant the detainee will actually be released: almost half of the 155 remaining detainees have already been cleared for transfer, some repeatedly and years ago, but have been stuck there.  Still, we’ll at least learn after this process whether another prisoner not yet cleared will have more reason to hope.

Even more important is that detainees in these proceedings are allowed to have lawyers to research and present their case.  That doesn’t mean they all will have lawyers, because the government won’t pay for them and volunteer lawyers have to cover all of their own expenses.  But it’s an improvement over Bagram, where even pro bono lawyers begging to represent the detainees weren’t allowed to.  Detainees there were entitled only to U.S. soldiers who acted as “personal representatives.”  From what I saw, those representatives didn’t do very much.

On Tuesday, we’ll see the case of a man the government claims was a guard for Osama bin Laden more a dozen years ago.  Al Wahab is lucky to be represented by an experienced pro bono lawyer who’s already represented him in his habeas corpus case, has developed a relationship with him and his family over the years, and has a law firm willing to cover many of the costs.  Other detainees will not be so lucky.

That’s where the greatest unfairness of this new procedure lies.  As at the DRBs at Bagram, the new PRBs guarantee each detainee a “personal representative” to represent him.  But that representative is not a lawyer and has no training or experience advocating for a client.  What’s more, as a member of the U.S. military, it’s hard to imagine the personal representative will be in a position to develop a trusting relationship with the detainee’s family and community back home, which is where the information critical to these hearings lies.  And the representatives are not given the resources to conduct a real investigation of the detainee’s family or community circumstances.  In many cases, that could mean the detainee will have no substantive evidence of favorable circumstances awaiting him at home marshaled in his favor at all.  That will be through no fault of his own, and completely unrelated to whether he’s likely to become a model citizen or a suicide bomber. It will simply be that he wasn’t lucky enough to have a generous, well-resourced American lawyer willing to take on his case on the lawyer’s own time and at his own expense.

Needless to say, that shouldn’t be what determines whether a man remains imprisoned indefinitely.

I’ll report back here after al-Wahab’s hearing on Tuesday. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).