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Held For 1,000 Days Since Approval For Release From Guantánamo Prison

In the first of a new series of profiles of men held at Guantánamo — specifically, the 16 men (out of the 30 still held) who have long been approved for release by high-level US government review processes — I’m focusing on Uthman Abd Al-Rahim Muhammad Uthman, a 43-year old Yemeni citizen, who, today, has been held for 1,000 days since the US authorities first decided that they no longer wanted to hold him.

Uthman arrived at Guantánamo on January 16, 2002, five days after the prison opened, when he was just 21 years old, and, as a result, he has been held for over half his life at Guantánamo. The photo is from his classified military file, released by WikiLeaks in April 2011, and dating from April 2008, meaning that he would have been 27 years old, or younger, when it was taken.

Since his arrival at Guantánamo — 8,058 days ago (that’s 22 years and 22 days) — Uthman has been held without charge or trial, and with no sign of when, if ever, he will eventually be freed, even though the high-level government review process that approved him for release concluded unanimously, on May 13, 2021, that “continued law of war detention is no longer necessary to protect against a continuing significant threat to the security of the United States.”

The review process, known as the Periodic Review Boards (PRBs), is a parole-type process initiated by President Obama, “comprised 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”, as its website explains.

Unfortunately, Uthman is still held because the PRBs are a purely administrative process, and carry no legal weight, meaning that there is no one Uthman can appeal to — a federal court judge, for example — if, as is apparent from how long he has been held since the decision to approve him for release was taken, the Biden administration shows no interest in actually freeing him.

To be fair to the US government, there is a complication. Most, if not all of these 16 men cannot be repatriated, because of provisions inserted every year by Republicans into the National Defense Authorization ACT (NDAA), preventing their return to their home countries — Yemen, in most cases, but also Somalia and Libya.

As a result, third countries must be found that are prepared to offer new homes to these men. However, although President Biden belatedly appointed an official in the State Department — former ambassador Tina Kaidanow — to oversee resettlement issues relating to Guantánamo in the summer of 2021, the resettlement of these men is clearly not being prioritized by those in the chain of command above her; very specifically, President Biden himself, and Antony Blinken, the Secretary of State.

What makes the case of these 16 men even more shameful is that, last year, when the Biden administration was legally obliged to release Majid Khan, a remorseful Al-Qaeda courier who had been charged in the military commissions at Guantánamo, and had agreed to a plea deal whereby, in exchange for his cooperation with ongoing trials at Guantánamo, he would be freed, the US government — at, presumably, the highest level — successfully negotiated his resettlement in Belize, whereas 16 men never even charged with a crime cannot get out of Guantánamo at all because there is no legal obligation for them to be freed.

Not for the first time at Guantánamo, those treated most dismissively — and apparently consigned to lifelong imprisonment without charge or trial — are those who are too insignificant to even be charged with a crime.

Through this series of profiles, I hope to raise the profile of these 16 men, who, today, have been held for between 502 and 1,196 days since they were approved for release — and in three cases for a truly shocking 5,129 days — to help to push the Biden administration into recognizing that its failure to release these men is completely unacceptable.

Uthman’s story

According to his military file, Uthman had traveled to Afghanistan in March 2001 to assist the Taliban in their ongoing civil war with the Northern Alliance, and was seized after crossing from Afghanistan to Pakistan in December 2001 with several dozen other men, who also ended up being sent to Guantánamo.

As I explained when Uthman was approved for release in May 2021, the US authorities persistently claimed that he was a bodyguard for Osama bin Laden — describing Uthman and those captured with him as “the Dirty Thirty” — even though this was never a credible claim, because most of the men, like Uthman, were very young, and were recent arrivals in Afghanistan, whereas bin Laden’s actual bodyguards were generally battle-hardened Egyptians.

In addition, over the years, almost all of the so-called “Dirty Thirty” were freed from Guantánamo, exposing the ludicrousness of the US claims, although Uthman was not so fortunate. His 2008 military file insisted on repeating the false assertion that he was “a member of al-Qaida and a former Usama Bin Laden (UBL) bodyguard,” and it took until February 2010, over eight years after his arrival at Guantánamo, for a federal court judge, Judge Henry H. Kennedy Jr., ruling on his habeas corpus petition, to throw out these claims and to order his release.

Judge Kennedy refused to accept the Justice Department’s claims that Uthman was a bodyguard for bin Laden because they had been made by two other prisoners — Sharqawi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi (both still held and also approved for release) whose testimony was unreliable because of “unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

Despite this victory, however, the Obama administration appealed, and in March 2011 the D.C. Circuit Court — the appeals court in Washington, D.C., which, at the time, was dominated by conservative judges — reversed Judge Kennedy’s ruling, leading law professor Jonathan Hafetz to conclude, with some accuracy, that their ruling endorsed “indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

Uthman then had to wait for another five years to have his case reviewed again — this time by a PRB, in April 2016. Once more, however, the discredited bodyguard allegations resurfaced, and in May 2016 the board upheld his ongoing imprisonment, in part because of their consideration of his alleged “past involvement in terrorist activities,” including “his selection to be a bodyguard for Usama Bin Ladin.”

Uthman had another review, in December 2016, which again led to his ongoing imprisonment being upheld, and this familiar pattern — still with the bodyguard allegation — was repeated under Donald Trump, in 2017. Although most of the men eligible for PRBs boycotted their hearings under Trump, when they concluded that it had become pointless, Uthman persisted, but was turned down again in February 2020 after a hearing in December 2019.

Finally, after President Biden took office, Uthman succeeded in persuading a board to approve his release, despite the bodyguard claim still being repeated, with Beth Jacob, who became his attorney in 2019, telling the board members that he is “thoughtful, polite and open-minded,” with “a very dry sense of humor,” who is “eager to learn and has taken advantage of the opportunities at Guantánamo to take classes, ranging from business to art to English,” and “has worked hard at these studies.”

Jacob also pointed out that he “has never been resentful because of his imprisonment or hostile to the United States in any of our many conversations,” and “has been among the most compliant detainees throughout his lengthy detention,” adding that throughout his long imprisonment “he has grown up, matured and educated himself, and learned from past mistakes.”

The approval for Uthman’s release — long overdue — was entirely appropriate, but as we mark 1,000 days since this decision was taken, and the 8,058 days that Uthman has been held, it is surely time for some effort to be put by the Biden administration into giving him the freedom he so thoroughly deserves.

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