Demonstrators in front of the Supreme Court dress as detainees to protest against the military's detention facility at Guantanamo Bay, Cuba.

Demonstrators in front of the Supreme Court dress as detainees to protest against the military's detention facility at Guantanamo Bay, Cuba. Evan Vucci/AP

Guantanamo's New Purgatory

If the Periodic Review Boards are to ever meaningfully review Guantanamo detainees' detention, they must address these issues of delay, transparency, and legitimacy. By Zak Newman

Muhammad Murdi Issa Al-Zahrani sat at the center of the conference room table, his foot shackled to the floor.

He had chosen to attend his Periodic Review Board (PRB) hearing at the last minute, deciding to endure what other detainees had called a "humiliating and degrading" groin search to participate in the review of his continued detention without charge or trial at Guantánamo Bay prison since 2002. Writing furiously throughout the unclassified portion of his hearing, he appeared determined to make his case for release.

Tragically for Al-Zahrani, there is little cause for such hope in the PRB system.

The PRBs were designed to ease the sting of the administration's policy of indefinite detention without charge or trial at the prison camp. Begun a year ago today after more than two years of delay, they were to be an opportunity for indefinitely imprisoned detainees to challenge their detention through an administrative hearing. But in their first year, the hearings have largely only aggravated the practice of indefinite detention.

The glacial pace of the PRBs means that even the attempt at some due process for these men will come at an unacceptable delay – and very likely after President Barack Obama leaves office. When detainees do finally get a hearing, the PRBs provide little by way of real due process of law, and even detainees cleared by the PRB may stay stuck at the prison camp. If the boards are to ever meaningfully review detainees' detention, they must address these issues of delay, transparency, and legitimacy:

Crawling Towards Justice: The Pace of the PRBs

When the PRB first opened its doors last July, there were 71 detainees eligible for review. Since that time, the PRB has held hearings for only nine detainees. At that rate, the last detainee will not complete his first review board hearing until April of 2026.

For its part, the Periodic Review Secretariat – the body that oversees the PRBs - must set up an elaborate process before each detainee's review. According to the policy memo governing the boards, an interagency group led by the Defense Department must "assemble and analyze all of the information required to be considered by the PRB." 

Even so, given that the board is to consider only whether a detainee still represents an ongoing threat to U.S. security – and not the lawfulness of the detainee's detention – the scope of evidence to be considered by the panel is relatively constrained. This should make the work of the PRB staff easier, since each detainee should already have a file compiled as part of the administration's 2010 Guantánamo Review Task Force effort.

Despite this, the PRBs slug along, even though the work of the Secretariat is not all that different from that of the Guantánamo Review Task Force in 2010. In that review, officials from across national security-related agencies reviewed the cases of every detainee then at the island prison camp to determine whether each would be cleared for transfer from Guantánamo, would be charged before a court, or would be held indefinitely.

Review for all 240 detainees then at Guantánamo took one year to complete. Compare that to the nine reviews under the PRB in the same amount of time.

Behind Closed Doors: The Gesture of Process

Even though delay is the primary issue to address, it is questionable whether detainees would clamor to sit before the PRB. Given the process that's been created, there is little reason to expect a fair shake.

A major problem is secret evidence. According to the executive order authorizing the boards, the Defense Department must provide the service member assigned to represent the detainee and the detainee's private counsel – should he have one – with all the evidence compiled for the detainee's hearing. Only in "exceptional circumstances" is the government allowed to substitute the actual evidence against the detainee with a summary of the evidence it has against the detainee.

The exceptional, however, has become commonplace.

According to one private counsel in contact with the American Civil Liberties Union (ACLU), "exceptional circumstances" apply almost as a rule, and the detainee's representatives are very seldom actually able to scrutinize the evidence against the detainee. With the power dynamic heavily skewed in the government's favor, the Defense Department may assert whatever it wants about what the detainee may do upon his hypothetical release. This analysis, however, is based on its own jealously guarded intelligence in order to support the case for continued detention. In such a scenario, the detainee's representatives would be essentially powerless to meaningfully contest the assertion or the reliability of the source.

It's impossible to know whether and to what extent the government unfairly takes advantage of its upper hand during the review board process, but that is by design.

Under current procedures, media groups and observer organizations like the ACLU are allowed to witness only the narrowest sliver of the review board hearings. Watching from a secure web stream at a Defense Department building in Arlington, Va., observers witness roughly twenty minutes of prepared and sanitized opening statements from the government and from the detainee's representatives, the text of which is usually online by the time of the hearing. The actual substance of the hearing, with any discussion of the evidence against the detainee, takes place in a closed session.

In response to groups' concerns about how fair the process is for the detainee, we are allowed to view only the rehearsed skit that comes before the substantive portion of the hearing.

Pieces of Paper: The Bureaucratic Purgatory of the PRB

The effect of these systemic problems with the PRBs is tempered by the system's ultimate failure: No matter the finding of the board, no detainee has actually been released as a result of the process. To date, detainees have simply been handed a new piece of paper to stand in a different line for a future transfer from the prison camp.

Maybe, that is.

So far, three detainees have received a recommendation for transfer as a result of the PRB, the best possible outcome. These men have now joined the 75 detainees who have been waiting for release since they were cleared in 2010 as a result of that year's detainee review. In the past year, only nine detainees in that cleared category have been released.

The situation is even more difficult for two of the three who were cleared for a conditional transfer. As Yemeni nationals, these men face even higher obstacles to transfer due to security concerns in the country. No Yemeni cleared for release has been transferred from Guantánamo since 2010, even though they have been determined to pose no threat to U.S. security.

In some way, the failures on the back end explain the sluggishness and illegitimacy that has come to characterize the board in the last year. Why would staff have a sense of urgency to demonstrate the fairness of a process if the outcome will most likely be continued indefinite detention even for those cleared? What cause would that champion?

In ordering the PRBs, Obama thought he was creating a mechanism by which detainees determined to not represent a threat could finally be transferred home. For that to ever happen – and for PRB hearings to be at all meaningful – the reviews must be done with urgency, transparency, and the power to change outcomes. Until then, detainees like al-Zahrani will continue to suffer in their latest purgatory at Guantánamo.

Zak Newman works on national security issues at the ACLU's Washington Legislative Office.

NEXT STORY: Weather and War: A Perfect Storm