Retired Rear Adm. Norton C. Joerg, a senior Navy lawyer during the George W. Bush administration, told the lawyers that the new six-member “periodic review boards” will not decide whether the Pentagon is lawfully imprisoning their clients.
Rather, the panels will “assess whether continued law of war detention is necessary to protect against a continuing significant threat to the security of the United States,” Joerg said.
He offered no explanation for the late-night notices, which came during a long-running hunger strike by prisoners at Guantanamo over the conditions of their detention.
As of Sunday, the military said 46 detainees were malnourished enough to require forced feedings, which currently are conducted after dark in consideration of the holy month of Ramadan, when Muslims fast from dawn until dusk.
Once the daily fasting hours are over, according to prison spokesmen, Navy medical personnel offer to let a hunger striker drink a nutritional supplement before shackling him to a chair and snaking a tube up his nose and into his stomach to deliver the drink.
The International Committee of the Red Cross has urged the Obama administration to get on with the reviews. Army Lt. Col. Todd Breasseale, a Pentagon spokesman, would not say whether the first hearing would be held by mid-September or whether there is a target date for completion. He said only that the first hearing will take place “when conditions dictate.”
Also unclear is whether the review board members will go to Guantanamo to hear from the detainees or whether they will use a video link between the prison and Washington, as federal judges do when considering habeas corpus petitions. The six members on a panel represent the Pentagon; the Joint Chiefs of Staff; the Office of the Director of National Intelligence; and the Departments of State, Justice and Homeland Security.
Breasseale said Joerg is processing 71 of the prison’s 166 inmates for reviews: 46 “indefinite detainees,” a category created by an Obama task force in 2010 that includes prisoners considered too dangerous to release but for whom there is no evidence to justify a criminal trial, and 25 other detainees who in 2010 were listed as candidates for trials by military commissions or civilian courts.
Since then, the chief war-crimes prosecutor, Army Brig. Gen. Mark Martins, has decided to pursue fewer cases, citing a federal court ruling that “providing material support for terrorism” is not a war crime applicable to Guantanamo’s current detainee population.
“Our number may be reduced if charges are referred to a military commission,” Breasseale said in response to a series of questions sent to Joerg on Saturday. “Likewise, our number could increase if convictions are overturned or charges are withdrawn.”
Six Guantanamo detainees are awaiting death-penalty trials, and three have been convicted of war crimes. They will not get hearings.
Eighty-six others have been cleared for release and so are also ineligible for the reviews. But they have no release dates because the Obama administration has not overcome congressional restrictions on releases.
Breasseale would not say whether reporters will be allowed to watch or photograph the hearings, even if the detainees desire media coverage.
Pentagon officials also would not discuss specific cases. But based on the categories, the 71 men whose files will be reviewed include five Taliban members whose release is sought as part of an Afghanistan peace agreement.
The five are “indefinite detainees,” along with seven other Afghans, 26 Yemenis, three Saudis, two Kuwaitis, two Libyans, a Kenyan, a Moroccan and a Somali.
Others could argue for their release as candidates once considered for trial. They include:
●Zayn al-Abidin Muhammed Hussein, a 42-year-old, one-eyed Palestinian who was one of the CIA’s first prisoners in the campaign against terrorism. Better known by the nom de guerre Abu Zubaida, he was critically wounded when captured in Pakistan in 2002. Agents held him naked in a cage and waterboarded him 83 times to find out what he knew about al-Qaeda before delivering him to Guantanamo in 2006.
●An Indonesian named Riduan Isamuddin, 49, better known as Hambali, whom the CIA profiled a decade ago as a senior leader of Southeast Asia’s Jemaah Islamiah, the Islamic group blamed for the 2002 Bali bombings that killed more than 200 people. Hambali was captured in Thailand in 2003 but has never been charged with a crime.
●Mohammed al-Qahtani, 37, a Saudi who was considered at one time for prosecution as the possible “20th hijacker” in the Sept. 11, 2001, terrorist attacks. Agents subjected Qahtani to such harsh interrogation at Guantanamo that a senior Pentagon lawyer during the Bush years concluded that the United States had tortured him and forbade his inclusion in the Sept. 11 death-penalty tribunal.