The rigged system that’s keeping detainees at Guantánamo indefinitely

by Katie Taylor Deputy Director, Reprieve

The U.S. government continues to use Guantánamo Bay for the unlawful detention of 40 men. Most of these men have been in U.S. custody for over 16 years with neither charge nor trial.

The Periodic Review Board (PRB) is a process whereby Guantánamo detainees can – in theory – be cleared for release if they are deemed to not be a “significant threat” to the security of the United States.

But Reprieve’s recent report on the process showed that, in practice, the PRB is a flawed system – rigged and ineffective – offering no substantive access to justice and designed to keep detainees in Guantánamo indefinitely.

Here are just some of the reasons Guantánamo’s PRB is unlawful:

The board has no decision-making power

A Periodic Review Board is made up of senior officials from the Government, including the Departments of Defense, Homeland Security, Justice, and State; the Joint Chiefs of Staff, and the Office of Director of National Intelligence.

Because these officials are not independent of the chain of command, they cannot be truly objective and impartial in their role on the board.

Additionally, the ultimate decision lies with President Trump, the very man who campaigned on a promise to keep Guantánamo open and hold the detainees there indefinitely, tweeting that “there should be no further releases from Gitmo.”

Five detainees were cleared for release during Obama’s presidency. All five remain marooned at the prison because of Trump’s cruel election promise.

The board does not have access to all relevant information

In the absence of all relevant information, the Board relies on the Government’s evidence, generally treating all allegations as fact. The detainees themselves have even less information and are uniformly given a one-page summary of the allegations against them.

The board relies on evidence obtained by torture, despite public assertions to the contrary

The CIA’s use of torture through its Detention and Interrogation Program is well-documented by the Senate Select Committee on Intelligence and is universally condemned by human rights activists, the Senate Committee itself, and governments around the world. Evidence obtained by torture is inherently unreliable as many torture victims have admitted to offering false information to stop their own mistreatment.

The Board relies not only on classified evidence that cannot be seen (never mind challenged) by a detainee, but also on date-less classified evidence from anonymous sources. The only party able to verify that the source material did not originate from tortured persons is the government that denied its now infamous torture program for over a decade until it was exposed.

The board’s unfair procedures and required admissions of fault, together, constitute a coercive, rather than voluntary, process

Engagement with the PRB appears to, if anything, hinder a detainee’s prospects of release. The Board has made it very clear to detainees that their only hope of a positive ruling is to confess to some portion of the allegations against them – even if any many cases they deny the allegations – and to show remorse for those alleged actions.

The promise of freedom, like the threat of torture, is a powerful coercive tool. Statements made in PRB hearings with the hope of being released may then be used against detainees in any future proceedings to justify their continued detention.

The board’s procedures and decision-making process are not transparent

The arbitrary standard by which detainees are judged is their “threat level” to national security – a standard with no discernible meaning. Further, there are no known guidelines or metrics by which the board makes its decisions.

Without guidance, the board’s lines of questioning have been shown to be wildly arbitrary. A few examples are:

Why don’t you watch TV?

How did you come to practise yoga?

What do you think your biggest flaw is?

How do you plan to support yourself if you are released from Guantánamo? [Detainees have no guidance as to where they would be sent if they were to be released, making this question impossible to answer.]