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What’s it take to get out of Guantanamo?

BY Larisa Epatko  June 16, 2014 at 1:47 PM EST
Detainees in the compliant camp at Guantanamo Bay, Cuba. Photo by Larisa Epatko

Detainees in the compliant camp at Guantanamo Bay, Cuba. Photo by Larisa Epatko

Guantanamo inmate Fayiz Mohammed Ahmed al-Kandari put on a white cap and the traditional Middle Eastern white cotton shirt and pants on Thursday, in preparation for making his case to officials on why he no longer poses a risk to the United States.

He was appearing before officials from the departments of defense, homeland security, justice and state, known as the Periodic Review Board.

Al-Kandari, 39, has been held at Guantanamo since 2002 on war crimes charges. He is accused of going to an al-Qaida training camp in Afghanistan to learn about weapons and recruiting people to participate in jihad. He refutes the charges.

His lawyer Lt. Col. Barry Wingard, who spoke on his behalf at the review, said through more than 50 visits with al-Kandari at Guantanamo and more than a dozen trips to Kuwait — the detainee’s home country — to meet with officials and his family, Wingard could “unequivocally declare that he is not a threat to the national security of the United States.”

In additional to the rehabilitation facilities available in Kuwait, Wingard pointed to al-Kandari’s brother Abdullah, who also was a prisoner at Guantanamo for six years before his release back home to Kuwait, and is now a professional athlete, has started a family and “has posed no danger to anyone.”

“Fayiz has spent his 12-and-a-half years (at Guantanamo) reading, writing, teaching and becoming fluent in the English language,” said Wingard of his client. “Fayiz has several business ideas that we frequently discuss,” and he is looking forward to going back to Kuwait, getting married, starting a family and a business, his lawyer said.

An American flag flies over the detention facility at Guantanamo Bay, Cuba. Photo by Larisa Epatko

An American flag flies over the detention facility at Guantanamo Bay, Cuba. Photo by Larisa Epatko

After al-Kandari’s representatives gave their opening statements, the camera was turned off to the media. According to an official, closing the proceedings to the press enables the detainees to speak about personal matters without fear that the published information will be used against them later.

“Often that might mean saying things that could potentially endanger themselves or their families by those looking to re-recruit, threaten, or otherwise endanger them,” the official said.

The Periodic Review Board weighs the detainee’s responses to questions and the testimony of those who have worked closest with him when determining whether to recommend his continued detention at Guantanamo or recommend his transfer.

The board’s recommendation goes to a second committee made up the secretaries of state, defense and homeland security, the attorney general, director of national intelligence and the chairman of the Joint Chiefs of Staff.

The release of the detainee is contingent on finding a host country where security is in place to receive him, said Lt. Col. Todd Breasseale, the Pentagon’s spokesman on Guantanamo. Nearly 80 of Guantanamo’s 149 detainees are awaiting transfer because of these security provisions.

“First of all, we’ve got to find a country that’s willing to take these guys. That’s not the most easy thing that we do,” said Breasseale. “It has to be a country that is not going to subject these detainees to inhumane treatment or torture, or have a history of torture. And finally, they have to be able to make verifiable security assurances.”

Some detainees could be transferred for continued detention in another country, for monitoring, or for release but continued observation — all of which is negotiated with U.S. officials and the host country.

Another approximately 20 detainees are considered eligible for prosecution under military commission, and about 30 are considered too risky to move and are being held indefinitely under the “law of war,” said Breasseale.

A guard in the U.S. prison at Guantanamo Bay, Cuba. Photo by Larisa Epatko

A guard in the U.S. prison at Guantanamo Bay, Cuba. Photo by Larisa Epatko

Congress gets a 30-day notification when a detainee is released. In the case of the prisoner swap in May when Sgt. Bowe Bergdahl was traded for five Taliban prisoners from Guantanamo, some lawmakers said they weren’t notified.

When asked, Breasseale said the Bergdahl trade didn’t change the way detainees are processed. “We continue to review detainees to determine if they continue to present an enduring security threat and if so, can it be mitigated and if it cannot be, make a determination as to whether or not they’re eligible for continued law of war detention or for prosecution.”

President Obama authorized the review boards in 2011 as part of the overall effort to process the detainees and close the prison at Guantanamo Bay. The reviews began in January 2014.

A detainee cannot appeal the board’s recommendation but is eligible for a later review. Each detainee is due a review every three years.

Al-Kandari is the eighth detainee to undergo the board’s review. Of the five earlier cases the board has decided, three detainees were recommended for transfer and two were not because they still are considered a “significant threat” to the United States.

The ones who were recommended for transfer had strong family support and were helpful in detention, according to the board. For those deemed a continued threat, the reasons included close ties to al-Qaida and anti-U.S. sentiments expressed to other inmates. In one case, the board said the detainee chose not to attend the hearing and urged him to do so next time.

None of the three detainees that the board recommended for transfer has left the prison. The next review — of prisoner Muhammad Murdi Issa al-Zahrani — is on Thursday.


Updated Aug. 7, 2014: The Periodic Review Board came to the conclusion that al-Kandari should continue to be held in custody. “The Board found the detainee credible with respect to his desire to return to his family, which appears willing to help with his reintegration, but also considered the detainee’s susceptibility for recruitment due to his connections to extremists and his residual anger at the U.S.,” the board said. He is eligible for another review in six months.