August 19, 2013

New look at resolving some of Guantanamo's hardest cases

About 50 detainees held indefinitely pose one of the biggest obstacles to closing the prison.

By BEN FOX The Associated Press

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Guantanamo detainees pray before dawn near a fence of razor-wire at the prison on the U.S. naval base in Cuba. The prison once held as many as 680 men but now has 166 prisoners as the government figures out how to close the facility.

The Associated Press

Faez al-Kandari
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Faez al-Kandari, a Kuwaiti accused of being part of al-Qaida, is being held even though Kuwait has built a rehabilitation center that sits idle.

The Associated Press

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In general, however, the reason the government often opted not to prosecute men on the indefinite list was because their capture involved aid from foreign governments that did not want their assistance disclosed or because U.S. authorities used technological capabilities they did not want to publicize, said Davis, the former chief prosecutor.

"It wasn't that there wasn't good evidence; it was an inability to use that evidence," Davis said.

Air Force Lt. Col. Barry Wingard, a military lawyer for al-Kandari, who is accused of producing al-Qaida propaganda, insists there is a lack of evidence.

"If the government could successfully prosecute these guys they would," he said. "But they can't and they won't."


The U.S. began using Guantanamo to hold "enemy combatants" in the chaotic early days of the war in Afghanistan. Al-Shimrani, captured in Pakistan after fleeing Afghanistan, was among the first arrivals, a core group who it was thought would yield valuable intelligence about al-Qaida.

He was eventually interrogated at least 88 times, according to court documents.

The prison, meanwhile, grew to a peak of about 680, with Afghans and Saudis the two largest groups by nationality.

Amid global pressure, Obama vowed to close the prison upon taking office but was thwarted by Congress, which enacted legislation that prohibited the transfer of prisoners to the U.S. and made it harder to send them abroad.

An administration task force divided the prisoners into three, somewhat fluid, categories in January 2010: those who should be considered for trial; those who should be transferred overseas or released; and those who should be held indefinitely under the laws of war. At the time, there were 48 on the indefinite list but two have since died.

The number may also grow since some of the two dozen designated for prosecution currently can't be charged because Congress has prevented them from being tried in civilian courts and an appeals court ruling found they couldn't be charged by military commission.

Meanwhile, the government is fitfully moving ahead with military trials for some of the men whose cases were deemed fit for prosecution.

Defense Department officials were returning to Guantanamo Bay on Sunday for a weeklong pretrial hearing for five prisoners facing charges that include murder and terrorism for planning and aiding the Sept. 11 attacks. The trial is at least a year away.

The exact number of prisoners who can be prosecuted will depend on pending appeals of court decisions and other factors.

The U.S. has also made some progress on the nearly 90 prisoners approved for transfer or release, recently naming a new State Department envoy to lead the effort and approving long-stalled transfers for two Algerians.

That leaves the fate of the indefinites up to the intelligence officials on Periodic Review Boards. In the early years of his captivity, al-Shimrani was disdainful of a military panel weighing whether he should be held as an enemy combatant, sending a defiant note that said "judge me the way you like."

Some of that defiance may have worn off. Rayner describes him as "troubled" by his open-ended incarceration.

"You know indefiniteness is quite cruel, it really leaves someone psychologically at sea," she said.


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Fawzi al-Odah
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Fawzi al-Odah


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