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May 28, 2019

Two PRB Reviews and Two No-Shows as Detainees Continue to Opt Out

By Annie Himes

On Tuesday May 21, the Periodic Review Board (PRB) held back-to-back hearings for two Guantanamo detainees: Mustafa Faraj Muhammad Masud al-Jadid al-Uzaybi (a.k.a. Abu Faraj al Libi), a 48-year-old Libyan citizen, and Mohd Farik bin Amin (a.k.a. Zubair), a 44-year-old Malaysian citizen. Neither attended his hearing.

The purpose of the PRB process is to determine whether Guantanamo detainees who have not and will not be charged or tried in the military commission system are continuing “significant” threats to the United States or can be approved for transfer to a third country. Al-Uzaybi and bin Amin, both high-value detainees, have been held at Guantanamo Bay for nearly thirteen years.

Al-Uzaybi has received four file reviews between his initial PRB review in 2016 and last Tuesday’s full review. The government alleges al-Uzaybi was an Al-Qaeda “general manager” and a “trusted adviser” to Osama bin Laden and Ayman al-Zawahiri.

Bin Amin has received three file reviews since his initial PRB review in 2016. He denies government allegations that he fought on the frontlines against the Northern Alliance, an Afghan force allied with the United States. Despite his good behavior, candor, and large support system in Malaysia, his initial review in 2016 recommended continued detention. He has since refused all meetings with his personal representatives.

Last Tuesday marked the first time the Periodic Review Secretariat scheduled two PRB hearings in one morning, which likely results, at least in part, from detainees’ increasing unwillingness to participate in the PRB process. Only the detainees’ government-appointed personal representatives attended, and they delivered short statements explaining the detainees’ refusal to attend recent meetings. Bin Amin’s personal representatives said the detainee’s private counsel instructed him to refrain from meeting with his personal representatives so they could focus instead on his habeas case in U.S. federal court. Bin Amin’s personal representatives provided even less detail, stating only that he had refused three meetings since his last file review in 2018. Both hearings lasted less than five minutes.

Tuesday’s hearings are further proof that the PRB process is broken. Detainees have little faith in the process and consistently refuse to participate. Under the Trump administration, the PRB process has become a rubberstamp for continued detention. Since 2017, no PRB review has cleared a detainee for release or transfer. The five detainees cleared for transfer under the Obama administration—two through the PRB process and three by the PRB’s predecessor, the Guantanamo Review Task Force—have yet to leave Guantanamo because a PRB determination does not guarantee release. Furthermore, the Trump administration dismantled the State Department’s infrastructure for carrying out transfers.

But the problems with the PRB process did not start with the Trump Administration. Since its inception in 2011, the process has had a number of critical flaws: it relies on evidence compiled solely by the government and may be derived from torture; a detainee’s personal representatives and defense counsel lack access to the underlying evidence the PRB considers even when they possess the correct security clearance; the “significant threat” standard set forth by executive order is vague and allows the PRB to incentivize false confession; and the secretary of defense maintains the power to override any PRB decision.

Last week Human Rights First filed an amicus brief in Ali v. Trump, a case pending before the U.S. Court of Appeals for the D.C. Circuit. The brief explains in detail the deeply flawed PRB process and how it has become a one-way ratchet for continued detention under the Trump Administration. This case is part of a larger lawsuit the Center for Constitutional Rights (CCR) brought on behalf of eleven Guantanamo detainees who have been held without charge for over a decade. While ten of these men await district court rulings, Judge Richard Leon handed down an August 2018 decision denying habeas relief to Abdul Razak Ali, who then appealed. CCR argues on appeal that Ali’s perpetual detention violates the Constitution, specifically the Fifth Amendment Due Process Clause. The government counters that the PRB process renders Ali’s continued detention “fully consistent with due process.”

Human Rights First’s brief shows that the PRB process is effectively defunct, providing no meaningful opportunity for transfer, and therefore does not render Ali’s continued detention for nearly seventeen years consistent with due process. The most recent PRB hearings only further confirm our conclusions.