Today, after 14 years imprisonment at Guantanamo Bay, Cuba, a Yemeni detainee named Mohammad Ahmad Abdallah al Ansi asked the U.S. Government to transfer him from Cuba to a third country. If released, 58 detainees would remain at Guantanamo, down from a record high of 780 detainees.

This parole board like hearing is called a Periodic Review Board (PRB), and was convened pursuant to President Obama’s 2011 Executive Order calling for PRBs to ascertain whether detainees pose a continuing threat to the national security of the U.S. If a detainee does not pose such a threat, he may be repatriated to his home country or transferred to a third country. It is unknown whether the next President will rescind this Executive Order and cease Period Reviews, and whether any of the 5 dozen remaining detainees will be released after January 2017.

President Obama’s 2011 Executive Order calls for three types of PRBs: (a) an Initial PRB for all detainees, involving a hearing at which the detainee may appear and speak on his own behalf; (b) a file PRB, held 6 months after a detainee is denied release following an initial PRB and which detainees are prohibited from attending; and (c) a full PRB, held if after a file review the Board finds that the detainee is a “continuing” risk to US national security.

Al Ansi, who is also known as prisoner number YM – 029, had his initial PRB in February 2016, a file PRB in September 2016, and a full PRB today. This article discusses the initial, file and full reviews.

al Ansi’s initial PRB

At al Ansi’s initial PRB on 23 February 2016, he appeared in person. On 23 March 2016, a month after the initial PRB, the Board made its final determination as follows:

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 significant derogatory information regarding the detainee’s past activities in Afghanistan. Further, the Board noted the detainee’s lack of candor resulting in an inability to assess the detainee’s credibility and therefore his future intentions.

The Board looks forward to reviewing the detainee’s file in six months and encourages the detainee to continue to be compliant, continue taking advantage of educational opportunities and continue working with the doctors to maintain his health. The Board encourages the detainee to be increasingly forthcoming in communications with the Board.

al Ansi’s file review PRB

After his initial PRB, al Ansi had a file review PRB, which he was not permitted to appear, with a Board determination based only on his written “file”.  His file review was held on 13 or 14 September 2016 (according to http://www.prs.mil), and on 14 September 2016 (according to the written file review final determination) the Board ruled as follows:

MEMORANDUM FOR THE RECORD

SUBJECT: Periodic Review Board File Review – Muhammad Ahmad Abdalla al-Ansi (YM- 029)

On 14 September 2016, the PRB conducted a file review for Muhammad Ahmad Abdalla al­ Ansi (YM-029) 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 23 March 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.0.  13567.

al Ansi’s Full PRB

Today’s PRB (6 December 2016) as Ansi had a “full” PRB review.

Today’s full PRB, like all the other PRBs, was held at Guantanamo Bay. Today’s session was broadcast by live close circuit TV (CCTV) to a secure location at the Pentagon for viewing by non-governmental organizations and the media.

I observed the hearing in a modest Pentagon conference room, joined by representatives of non-governmental organizations (Judicial Watch, Heritage Foundation, ACLU, and Human Rights First) and the media (Courthouse News). When we watched these proceedings piped in from Guantanamo, we also had 2 to 3 military or civilian escorts or technicians in the room with us, but I will not reveal further information about the identities, ranks or affiliations of these individuals (all of whom are always very friendly and nice!).

Members of the PRB Board – which comprises one representative each from the Departments of Homeland Security, State, Justice and Defense; the Joint Chiefs of Staff; and the Office of the Director of National Security – were not physically at Guantanamo Bay, but watched the proceedings from the D.C. area, presumably from their respective offices.

It is unclear when the Board is expected to make a final determination on this full PRB, and whether that determination will be made before the Obama Administration ends on 20 January 2017.

Some of the words spoken during the hearing were in Arabic, and were spoken by an on-camera interpreter.

An off camera voice, presumably from but not necessarily from Guantanamo, advised in English on the nature of the hearing, the format, and the short agenda.

Another off camera voice read aloud the government’s “unclassified summary statement”, in English, of behavior that al Ansi allegedly engaged in, both before he arrived at Guantanamo and after he arrived.

After the government’s unclassified summary statement, the personal representative read an opening statement in English.

Then, al Ansi’s private counsel read a statement, also in English.

After the statements, an off camera voice asked if anyone had any questions. There were none.

The unclassified portion of hearing ended roughly 15 minutes after it started. Observers were invited to leave the conference room, since Observers are not permitted to observe classified portions of the PRB hearings.

Who is Mohammad Ahmad Abdallah al Ansi?

He is 40 or 41 years of age, born in Yemen. The government paints a picture of him as an avowed war criminal member of al Qaeda, as being loyal to Osama bin Laden, and as a person slated for an aborted hijacking in Asia meant to coincide with 9/11. The government has kept al Ansi in prison at Guantanamo Bay for over 14 years, and has on multiple occasions affirmatively ruled that he posed a threat to the national security of the U.S. Indeed, this same PRB ruled twice this year (February and September 2016) that al Ansi should not be released.

al Ansi’s personal representative and private counsel painted a different picture of al Ansi. The private counsel spoke about al Ansi’s suitability for release, and what he might do constructively upon release. Though the personal representative did not directly speak to the issue of whether he thought al Ansi posed a continuing threat to U.S. national security, the personal representative did not speak against release.

Today’s hearing itself

Today’s full PRB hearing commenced about 9:06 and ended 15 minutes later at about 9:21.

al Ansi sat at the head of a small white rectangular table that appeared to be in a Guantanamo Bay “trailer” (and not in a Guantanamo Bay courtroom). On the long side of the table to his left sat his personal representative in a U.S. military uniform. Directly across from him, to al Ansi right, sat the linguist. Next to the linguist was the private counsel, sitting closest to the camera.

Throughout much of the hearing, al Ansi, who was dressed in white non-descript attire, sat with his elbows resting on the table, hunched a little forward, flipping through documents in front of him, possibly reading through the documents. It was impossible for us to see on the screen what the nature was of the pages in front of al Ansi, or in what language the pages were written. At times he would rest his forearms on the table, with his hand clasped, eyes cast downward.

Government’s unclassified statement

An off-camera woman’s voice read aloud the Government’s “unclassified statement” in which the Pentagon contended that al-Ansi

traveled to Afghanistan in 1999, where he joined al-Qa’ida, swore bayat to Usama Bin Ladin, and served as Bin Ladin’s bodyguard. Judging from other detainee statements and corroborating information [al-Ansi] may have been selected to participate in an aborted hijacking plot in Asia intended to coincide with the 9/11 attacks. He was captured by Pakistani authorities after the battle of Tora Bora in 2001. [al-Ansi] has been mostly compliant with the detention staff at Guantanamo, and his last disciplinary infraction was in June 2014. He has not expressed support for extremist causes or maintained contact with terrorists at large.”

Private Counsel Arguments supporting al Ansi’s request for transfer

al-Ansi’s was represented at this PRB by private counsel Beth Jacob who is a partner at the New York law firm Kelley Drye & Warren, where she represents generic pharmaceutical companies.  Before she joined Kelley Drye & Warren, she represented the Port Authority of New York & New Jersey in litigation arising out of the 9/11 attacks, representing 9/11 victims who sought compensation. She had previously been an assistant district attorney i n New York, prosecuting fraud and official corruption.

She only began representing al Ansi since after his initial PRB ruling finding that he continued to pose a threat to national security of the United States.

She pointed out that al Ansi showed her some of the artwork created at Guantanamo Bay, and she showed it to a New York-based artist, who “was struck by his ability and innate talent , as she has written in her letter to this Board”.

In arguing that al Ansi should be released from Guantanamo Bay, she noted that the New York artist and Reprieve said that. “Mr. al Ansi’s art will stand him in good stead if he is deemed transferrable” for several reasons, including: (a) ‘it will give him something to do and a means of expression, in the first days and weeks after his transfer”; (b) “he will be part of the community of artists, which will provide stability and social contacts; and (c) “there i s the possibility of earnings from his art.” She went further to state that “Mr. al Ansi is planning for more practical ways to make a living – he told me he would like a construction job, and among the many classes that he is taking here at GTMO is one about small business.”

In support of her arguments supporting al Ansi’s transfer, his private counsel argued that his: “family still has resources which they are completely willing to use to help their brother start a new life after Guantanamo , as shown by the statements the family submitted to the first board and this panel. His family will be a stabilizing force when he is transferred.

Further, she argued that his health situation supported transfer, though the details of his health situation were not revealed, as a portion of her letter was redacted. She wrote:

The second factor [supporting transfer] is his health. [Redacted] [Redacted] [Redacted] [Redacted] He knows that managing these chronic conditions takes much time, effort and attention, and that he must follow a strict diet and exercise regimen , in addition to his medications.

She argued that if released, he will also have support of the Carter Center, founded by President Carter, and Reprieve’s Life After Guantanamo project, which has helped over three dozen former detainees.

Personal Representative Statement

al Ansi’s personal representative, who was a military officer in fatigues, read a simple, prepared 1-page statement that noted that

al-Ansi has intensely participated in the PRB process”,  has “maintained a record of perfect attendance for meetings with his Personal Representative (PR) and Private Counsel (PC) despite the constant change in schedulling”, and that his “professional manner throughout all engagements with his PC and PR has not wavered.

The personal representative noted that:

He continues to enthusiastically maintain his compliant behavior with the Joint Task Force (JTF) Guard Force and continues to engage with the JTF Medical Staff in order to deal with chronic health issues.  In addition, Mr. Al-Ansi has not ceased to passionately take advantage of the educational opportunities to include courses in Mathematics , Science, English, Spanish, Life Skills, Computers, Art, and recently started the Arab British Academy for higher education studies.  Since July of 2016, he has created an additional 150 quality works of art.  Seven additional works of art are included in his case submission.  Recently, he has enrolled i n Small Project Management , Business Administration, Accounting and Ledgers classes.

Unlike other personal representatives in other cases, this Personal Representative did not say whether or not he believed that al Ansi is or is not a threat to the security of the United States”.

By George Edwards,

Professor of Law, Indiana University McKinney School of Law

Faculty Director (Founding), Guantanamo Bay Periodic Review Board (PRB) Project

Faculty Director (Founding), U.S. Military Commission Observation Project