JURIST guest columnist Peter Jan Honigsberg from the University of San Francisco School of Law discusses possible release of detainees from Guantanamo Bay…

On April 24, JURIST reported that Shaker Aamer, a citizen of Saudi Arabia (SA) and a British resident who has been detained in Guantanamo Bay, Cuba since 2002 is scheduled for release in June. Aamer is the only remaining United Kingdom (UK) citizen or resident in Guantanamo. He has been cleared for release and, according to the government, is currently approved to be transferred to Saudi Arabia (SA), his country of birth. He wants to return to the UK, to rejoin his wife and family, who live in London. Accordingly there are two questions involved here: Will he be released next month and, if so, will he be transferred to the UK or SA?

News reports indicate that Prime Minister David Cameron has met with President Obama and has requested that Aamer be resettled in the UK. Obama reportedly told Cameron that he would “prioritize” the case. Nevertheless as of May 12, the Pentagon still has Aamer scheduled for release to SA. Aamer’s lawyer Clive Stafford Smith wrote in an email to me on May 14, 2014 that, “I think the Saudi thing is a red herring as nobody else in the whole place is only cleared for one country. So our position is that he is just ‘cleared’.”

The US government has accused Aamer of being a member of Al Qaeda, and having met Osama Ben Laden. Aamer has stated numerous times that he was working in Afghanistan as a charity worker and teacher when he was seized. Although Aamer has been in Guantanamo for over 13 years, he has never been charged with a crime.

Shaker Aamer has been cleared for release twice: in 2007 by the Bush Administration and in 2009 by the Obama Administration. In Guantanamo Aamer has suffered repeated lengthy periods of isolation; been on hunger strikes, where he was cruelly and inhumanely force-fed; and been physically brutalized and beaten. Today he is in poor health. The UK claims that the Americans have misled it over the harsh mistreatment of Aamer.

Various theories have been proposed as to why Aamer remains in Guantanamo when the other 15 detainees from the UK were released years ago. One theory is that the UK does not want Aamer to publicly repeat a story he has been maintaining for years, namely that a UK intelligence agent from MI5 was present when a US interrogator smashed his head against a wall in Bagram Air Force Base, before his transfer to Guantanamo. In 2010, the British government paid approximately $16,000,000 to the British citizens and residents detained in Guantanamo (including Aamer, who cannot receive his funds until he is released) in order to settle a lawsuit brought by the former detainees against the MI5 and MI6 security agencies.

Supporters of Aamer maintain that the UK does not want to revisit accusations against these agencies and would prefer that Aamer be released to SA, where it is unlikely that he would be given the platform to speak publicly about his treatment. Attorney Stafford Smith believes that, “The sole reason for the US to send Shaker to Saudi Arabia is to have him silenced, most likely by sentencing him to a long imprisonment after a sham trial.”

Another theory is that Aamer was present when three detainees died in Guantanamo one night in 2006. The US government alleges that all three men committed suicide on the same night, hanging in their cells, with their hands behind their backs and socks stuffed down their throats. However Sergeant Joseph Hickman, who was present at the base at the time, claims that the men were being interrogated that evening at a secret facility near the detention center, known as “Camp NO.” Something went terribly wrong, causing the men to die. According to Hickman, Aamer was also being questioned that night and was similarly mistreated. Some people believe that Aamer may know what caused the men to die. By transferring Aamer to SA, he would not have the opportunity to publicly discuss this incident.

A third theory is that Aamer, as a charismatic personality and natural leader, has been troublesome to the military. He initiated the first hunger strike in Guantanamo in 2005 and also negotiated its end with the military authorities. Following the strike, Aamer was placed in isolation for 360 days, which is 330 days longer than permitted under US policy. According to this theory keeping him in Guantanamo is his punishment for standing up for the rights of other detainees.

Although JURIST as well as other news reports assert that Aamer will be released in June, whether to GB or SA, there are no official indications that this will happen. In order for a detainee to be released several steps are required. The Obama Administration must provide a transfer packet to the Secretary of Defense. The Secretary must sign the packet and forward the approved release to Congress, with a 30-day notice. According to a statement by Secretary of Defense Ash Carter, on April 23, 2015, no proposed transfer packets await his signature nor has he forwarded any approved releases to Congress.

Secretary Carter may have approved releases since April 23—the approvals usually are not made public until the release. However there are indications that the process has been slowing down, if not halted altogether, due to Republican accusations that the president broke the law when he swapped five high-ranking Taliban officials in Guantanamo for the release of Army Sergeant Bowe Bergdahl in May 2014. Bergdahl was held by the Taliban in Afghanistan for five years. The Government Accountability Office also concluded that the administration broke the law by not following the requirements imposed by Congress in releasing the Taliban detainees. In response the Obama has argued that, as Commander-in-Chief, he had the authority to make the swap.

Partly because of the questionable legitimacy of the Bergdahl swap, the House Armed Services Committee (HASC) has drafted new language, to be included in the 2015 National Defense Authorization Act defense bill (NDAA), imposing additional restrictions on the administration’s releasing of detainees. It is likely that the government does not want to add ammunition to the HASC bill by releasing detainees at this time. Perhaps Obama would rather wait until the administration and the committee work out a reasonable accommodation. If that is the case, it is unlikely that Aamer will be released in June, whether to GB or SA. As Stafford Smith wrote to me in May, “Word is that he will be released next month, but I will believe it when I see it.”

On his second day in office Obama announced that he would close Guantanamo within one year. He repeated his pledge twice more during his administration. Six plus years later with Obama’s presidency on the wane, Guantanamo is still open with 122 individuals detained. It appears less and less likely that Guantanamo will close before the end of Obama’s administration.

In the meantime Shaker Aamer and 56 other men cleared for release have no choice but to continue their indefinite and infernal wait. And at the same time, their families try to remain optimistic that someday they will again unite with their fathers, husbands and sons.

Peter Jan Honigsberg is a professor at University of of San Francisco School of Law and the founder and director of the Witness to Guantanamo project.

Suggested citation: Peter Jan Honigsberg, Will The Last UK Resident be Released from Guantanamo Next Month?, JURIST – Academic Commentary, May 17, 2015, http://jurist.org/forum/2015/05/peter-jan-honigsberg-guantanamo-detainees.php