This morning, in a dark, locked, secure Pentagon conference room, I attended a hearing in which Guantanamo’s oldest detainee, 69-year-old Mr. Saifullah Paracha, asked the U.S. government to set him free. I was joined by Judge Aline Fagundes, who is a Master of Laws (LL.M.) student at Indiana University McKinney School of Law, and several other carefully screened civilian monitors.
The hearing was held pursuant to a 2011 Executive Order issued by President Barack Obama that provides detainees periodic reviews to determine if the detainees are a threat to U.S. national security. If the Periodic Review Board (PRB) finds that the detainee is a threat, he remains detained. If he is found not to be a threat, he may be repatriated to his home country or resettled in a third country.
Mr. Paracha argued for his release. The government alleged that Mr. Paracha was a “businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners”.
The PRB is expected to render a decision in Mr. Paracha’s case in about a month.
Today’s hearing – Who? Where?
Today at the Pentagon we had 6 observers from non-governmental organizations (NGOs) and the media. Two of us were from the Guantanamo Bay project I founded at Indiana University McKinney School of Law (GitmoObserver.com). Our project sponsors Indiana Affiliates to travel to hearings at Guantanamo, the Pentagon, and Ft. Meade, Maryland.
We were met by 2 military and one civilian escort in the Pentagon’s Visitor Center, and escorted to a conference room where we talked amongst ourselves and listened to the Military History Channel, waiting for the hearing to commence.
Others present for the hearing included members of the “Board” itself that conducts the PRBs, and that consisted of one representative each from the Departments of Defense, State and Homeland Security; the Joint Chiefs of Staff; and the Office of the Director of National Intelligence. These individuals were not with us at the Pentagon, but were at a separate, undisclosed location in the DC area. It is believed that also present for the hearing, also at one or more undisclosed locations, were the Legal Advisor to the Board, the Case Administrator, a Hearing Clerk, and a Security Officer.
The detainee – Mr. Paracha – was present, by close circuit TV.
Mr. Paracha was joined by a “personal representative”, who is a military official dressed in uniform, who has been spending time with the Mr. Paracha and helping him present his case. The personal representative is not a lawyer or other sort of legal professional, and communications between Mr. Paracha and his personal representative are not protected by attorney client or similar privilege.
The hearing begins
The hearing was scheduled to begin at 9:00 a.m., but what appears to have been a technical glitch resulted in a delay. Some of us were concerned, since at the last PRB we attended the audio feed was great from Guantanamo Bay but there was no visual feed so the screen was blank. Today’s visual feed was blurry, but at least we could see the Guantanamo hearing room and its occupants, unlike at the last PRB.
At 9:14 a.m., a picture appeared on the almost ceiling-height screen.
In our dimly lit conference room, we saw on the screen the dimly lit Guantanamo room where the detainee sat at the end of a rectangular table, facing the camera, with a stack of papers in front of him. They were in one of Guantanamo’s trailer-like, austere, rooms that had plain walls, floor, and table.
In contrast to the bland surroundings, the hearing room had high back office chairs, that looked like high-quality leather chairs one might see in a law associate’s office. Aside from air conditioner units, seemingly from the 80s, hanging window-height on the wall behind Mr. Paracha’s head, there was nothing else on the walls.
On the table in front of Mr. Paracha’s seat was a table-top name plate that said in large, bold, all capital letters “DETAINEE”.
Mr. Paracha wore a white top, with somewhat short sleeves that appeared bunched at the elbows. His attire was clearly not a detainee “uniform”. Through the blur it appeared as though he had a white beard and a bald head.
The personal representative sat at the table on Mr. Paracha’s right, perpendicular to him, and not directly next to him.
The hearing began with a male, off-camera voice announcing that the hearing was commencing, mentioning some hearing rules, identifying who was present – boiler point.
Next came a female voice, again off camera. This voice read the Government’s Unclassified Statement, as follows:
Saifullah Paracha (PK-1094) was a Pakistan-based businessman and facilitator on behalf of al-Qa’ida senior leaders and operational planners. He met Usama Bin Ladin in 1999 or 2000 and later worked with external operations chief Khalid Shaykh Muhammad (KU-10024) to facilitate financial transactions and propaganda. Since his arrival at Guantanamo, Paracha has been very compliant with the detention staff and has espoused moderate views and acceptance of Western norms. Although there is no indication that he is in communication with extremists outside Guantanamo, Paracha’s extensive extremist business contacts that he established before his detention could provide him opportunities to reengage upon release should he choose to use them.
Mr. Paracha appeared to be paying close attention to whichever person happened to be speaking at the time – one of the off-camera narrators or his personal representative. The hearing was conducted in English, as a voice in the background stated that Mr. Paracha had waived his right to an interpretation of the hearing in another language of his choice.
While the personal representative spoke, Mr. Paracha would from time to time glance at her. At other times he appeared focused on the papers in front of him, appearing to follow along in English, flipping pages as the script was being read. At times he would place his left open palm firmly on the stack of papers, as though holding them down from a breeze.
The hearing ended at 9:19 — just 5 minutes after it began. This was the shortest PRB I have attended. They typically begin at 9:00 and run no longer than 30 minutes.
No private counsel of Mr. Parach attended today’s PRB, and no statement was read by any private counsel for Mr. Paracha’s today. That was one reason that the PRB was shorter than usual. It is unclear why private counsel did not appear today. A statement by the private counsel Mr. David H. Remes had been posted on the Perriodic Review Board website here. But, that statement was the same statement submitted under Mr. Remes for Mr. Paracha’s file review PRB in 2016. That statement ended with this sentence:
For these reasons, I respectfully encourage the Board to convene a full review and hope that it will conclude that Mr. Paracha’s continued detention is unwarranted.
David H. Remes
Approved for Public Release
That statement asked the Board to convene a “full review”, and today’s hearing was the “full review” requested. If Mr. Remes submitted a private counsel statement for today’s hearing, that statement was not posted on the PRB website (as of tonight — 8:55 p.m., Tuesday, 21 March 2017), and was not read at today’s hearing. What was posted online under Mr. Remese name was from last year.
Mr. Paracha’s background
Mr. Paracha, who is 69 years of age, is a former Pakistan-based businessman. He lived in the U.S. for about 15 years until the mid-1980s and went to college in the U.S.
The U.S. alleges that Mr. Paracha worked with high level members of al Qaeda, including Osama bin Laden. Mr. Paracha denies this. Mr. Paracha’s eldest son, Uzair Paracha, who was convicted in a U.S. federal court on charges related to terrorism, is serving a 30-year sentence.
Mr. Paracha was arrested in 2003 after arriving on a flight in Bangkok, Thailand, where he said he was going for business. He was sent to a prison camp in Europe for about 10 months, then sent to Guantanamo.
Mr. Paracha’s health has not been great, both before he arrived at Guantanamo in 2004 and while there. He has heart problems (including at least 2 heart attacks) and diabetes.
The hearing – a Periodic Review Board – PRB
Today’s hearing is called a Periodic Review Board (PRB), and was pursuant to a 7 March 2011 Executive Order (number 13567) which has required most detainees to have a “periodic review” of their detention status.
The PRB process is a “discretionary administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States.” Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.
Each detainee receives an “initial PRB” at which they have the option of appearing in their own behalf. If they are not released, every 6 months they have a “file review,” at which they are not entitled to appear, with decisions made based on their file. Per the Executive Order, every 3 years after that they have a “full review”, at which the detainee may again appear on his own behalf.
Paracha’s 3 PRB hearings — summary
Mr. Paracha had an “initial PRB” on 8 March 2016 and a “file PRB review” on 27 September 2016. The hearing on Tuesday will be his “full PRB”.
- Initial Review. Paracha had a PRB initial review on 8 March 2016, and on 7 April 2016 the Board concluded:
The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States. In making this determination, the Board considered the detainee’s past involvement in terrorist activities, including contacts and activities with Usama Bin Laden, Kahlid Shaykh Muhammad and other senior al-Qaeda members, facilitating financial transactions and travel, and developing media for al-Qaeda. The Board further noted the detainee’s refusal to take responsibility for his involvement with al-Qaeda, his inability and refusal to distinguish between legitimate and nefarious business contacts, his indifference toward the impact of his prior actions, and his lack of a plan to prevent exposure to avenues of reengagement.
- File Review. Paracha had a PRB file review on 27 September 2016, and on 12 October 2016 the Board concluded:
MEMORANDUM FOR THE RECORD
SUBJECT: Periodic Review Board File Review – Saifullah Abdullah Paracha (PK-I 094)
On 28 September 2016, the PRB conducted a file review for Saifullah Abdullah Paracha (PK- l 094) in accordance with Executive Order (E.O.) 13567, “Periodic Review of Individuals detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The PRB previously conducted a full review of the detainee and on 7 April 2016 determined that continued detention was necessary to protect against a continuing significant threat to the security of the United States. After reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question is raised as to Whether the detainee’s continued detention is warranted and therefore an additional full review should be conducted in accordance with section 3(c) of E.O. 13567.
- Full Review. It was Mr. Paracha’s full review that was held today. It should be noted that PRBs do not assess the defendant’s guilt or innocence, and are not criminal proceedings. A determination will be made as to whether the detainee is a threat to the U.S. He is hoping that the U.S. will repatriate him to Pakistan or send him to a 3rd country – outside the U.S.
The Board will likely publish a decision on this full review in a month or so.
More on this hearing?
The initial part of the PRB was unclassified, and that is the portion of the PRB that Judge Fagundes, the other monitors and I observed. During that portion of the PRB, we were sitting in a secure Pentagon viewing room watching Mr. Paracha and his personal representative live from Guantanamo Bay.
PRBs v. Military Commissions
Military commission are criminal proceedings that are geared towards determining whether defendants are guilty of offenses that are charged. Generally, the outcome of a military commission would be that the defendant is found guilty of the charges or the defendant is acquitted of the charges. Military commissions operate pursuant to the Military Commission Act of 2009, a federal statute.
PRBs are administrative proceedings that seek to determine whether a detainee is a threat to the national security of the U.S. The outcome of a PRB is that a detainee is considered a threat and will thus remain at Guantanamo Bay, or is not considered a threat and can be placed on a list for possible repatriation to his home country or resettlement in a third country. PRBs operate pursuant to an Executive Order issued in 2011.
Military commissions examine what the detainee alleged did in the past – his prior conduct – and assess the legality of that conduct. PRBs can be said to focus more on the detainee’s future conduct – whether the detainee is likely to engage in unlawful or otherwise threatening or harmful behavior if he is released.
Judge Fagundes’ observations
Judge Fagundes is the first student from Indiana University McKinney School of Law to participate in all three types of hearings our Indiana Guantanamo Bay Military Commission Observation Project / Gitmo Observer may send affiliates to observe:
- She traveled to Guantanamo Bay, Cuba to monitor U.S. Military Commissions live, in the courtroom.
- She traveled to Ft. Meade, Maryland, to monitor U.S. Military Commissions via a secure videolink from Guantanamo.
- She traveled to the Pentagon to monitor Guantanamo Bay Periodic Review Board (PRB).
Judge Fagundes is researching and writing a paper that focuses on international law requirements for transparency in the U.S. Military Commission system. She has described some of her experiences on this blog – www.GitmoObserver.com.
Guantanamo Bay, Cuba U.S. Military Commission Observation Project (MCOP)
Program in International Human Rights Law (PIHRL)
Indiana University McKinney School of Law