The Obama administration has launched a renewed effort to winnow the remaining detainee population at Guantánamo Naval Base, according to lawyers who have long represented them.
On Friday, the last Kuwaiti captive still held at Guantánamo was returned to his home country, where he will be subject to special rehabilitation and security measures. On Jan. 6, the U.S. flew two Yemeni detainees held for nearly 14 years to Ghana. Both of the Yemenis had been cleared of posing any threat to the United States by an interagency panel six years ago.
Another 14 detainees have been cleared by Secretary of Defense Ashton Carter as of mid-December and are likely to be transferred over the next several weeks, according J. Wells Dixon, who spearheads Guantánamo efforts for the Center for Constitutional Rights.
It’s at least conceivable, said Dixon, that by year’s end all remaining Guantánamo detainees who have not been charged or deemed a continuing threat could be transferred from the prison. “A big part of this is maintaining momentum,” said Dixon, a onetime Kramer Levin Naftalis & Frankel associate who has recruited scores of Am Law 100 litigators in the past decade to advise detainees. “We’ve seen momentum gained and lost so many times over the years.”
The transfers reduce the current Guantánamo population to 104, including 45 men cleared of posing any threat and another 39 whose detentions are eligible for a review. Ten other detainees, including alleged participants in 9/11 and other terror attacks and alleged supporters of al-Qaida, are facing military trials. Another 10, though not charged of any crimes, have been deemed to pose a continuing threat.
If the remaining 14 detainees cleared for transfer are moved out, Guantánamo’s head count will fall to 90, down from a high of 780 in the early 2000s. When Obama took office in January 2009, Guantánamo held 240 prisoners.
A November cover story in The American Lawyer described the legal and political race to resolve the detainees’ status before Obama departs office at the end of this year. The story highlighted the work of lawyers for two of the three detainees who were transferred from the prison last week.
One of those lawyers is Shearman & Sterling of counsel Thomas Wilner, who previously represented the just-released Kuwaiti, Fayez al Kandari, in a habeas corpus petition in federal district court in Washington, D.C.
The latest transfers are a step in the right direction, said Wilner, adding that that the pace of future transfers depends on the political will of the Obama administration.
Al Kandari, who has more recently been represented by Eric Lewis of 30-lawyer litigation boutique Lewis Baach, “goes home with optimism and looks forward to resuming a peaceful life and to putting Guantánamo behind him,” Lewis told The Miami Herald Friday.
Al Kandari, 40, comes from a wealthy family and has always maintained that he was a humanitarian aid worker in Afghanistan when he was caught up in the chaos following the 9/11 attacks and the U.S.-led invasion of that country in October 2011. He was seized by Afghan police and, like hundreds of other detainees, was sold to the U.S. military in December 2001 for a bounty as he tried to cross the mountains into Pakistan. The U.S. military alleged that he was an al-Qaida recruiter, but never charged him.
Al Kandari was one of a group of a dozen Kuwaitis whose case was part of Al Odah v. United States, and ultimately consolidated into Boumediene v. Bush. In a watershed decision in Boumediene in 2008, the U.S. Supreme Court established that detainees could access civilian courts in their habeas petitions. But his petition ultimately failed in 2010.
In a 2009 Op-Ed piece in the Washington Post, Barry Wingard, a military defense counsel who also represented al Kandari at one time, wrote that al Kandari faced persistent abuse by guards and interrogators over the years.
Last July, his case was reviewed by a new interagency panel called the Periodic Review Board—a sort of parole board established in 2013—to determine whether he still posed a threat. In September, the six-member board unanimously found that his detention under the law of war no longer remained necessary. The board recommended that he be repatriated to Kuwait, where he will now undergo a rehabilitation program for at least a year and be subject to security restrictions going forward.
In his presentation to the board, al Kandari’s lawyer, Lewis, noted that the Kuwaiti government had already “fully met and fully implemented its commitments” with respect to an earlier Kuwaiti detainee he represented before the PRB, Fawzi Al Odah, who was released in November 2014.
The CCR’s Dixon said that the government appears to have quickened the pace of the PRB hearings slightly, and that several more detainees have recently received word that their hearings are pending. Of 18 detainees who have gotten such hearings, 15 have been approved for transfer, he noted. But only five of those 15 have been transferred from Guantánamo, including al Kandari.
Speaking from the Guantánamo naval base, David Remes, a former Covington & Burling partner who represents many detainees before the Periodic Review Board, said that all the remaining detainees who haven’t yet been cleared for transfer received notices within the past few weeks that the PRB will review their status.
One of the two Yemenis sent to Ghana this week, Mahmoud Omar Mohammed Bin Atef, 36, was represented by George Clarke, a tax disputes partner at Baker & McKenzie in Washington, D.C. (Clarke still has one other Yemeni client, Toffiq al Bihani, whom he has represented since 2005 and who, like Bin Atef, has never been charged.)
Clarke declined to comment on the latest transfers. Last fall, he told The American Lawyer he continued to visit Bin Atef even after he lost his habeas challenge. “We’re not really lawyers at this point,” Clarke, a former Marine, said at the time. “What we’re trying to do is keep them sane.”