How 30 “Forever Prisoners” Got Out of Gitmo

Detainees line up inside Camp VI at Guantanamo Bay in March 2010. (Paul J. Richards/AFP/Getty Images)

When President Barack Obama left office, 41 detainees remained at Guantanamo Bay, down from 242 at the start of his presidency.

The effort to wind down the controversial military prison was a years-long process that began with the work of a special government task force, which in 2009 set out to determine which detainees could be transferred from Guantanamo. Transfers accelerated in Obama’s second term, with some who were once considered “indefinite detainees” — too dangerous to let out, but not possible to prosecute — being released.

Here, we examine what happened to the detainees Obama inherited, with a focus on those who went from “indefinite” to transfer.

240 detainees reviewed under Obama

Guantanamo held 242 detainees when Obama took office in 2009 promising to close the facility. By the time the Guantanamo Review Task Force began its work that March, the number was down to 240 (one detainee was convicted before the task force began its review, another committed suicide). The detainees ranged from low-level fighters to top officials in Al Qaeda, such as the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed. The task force sorted them into three broad categories: detainees who should be transferred, detainees who should face prosecution and detainees who should remain in continued detention.

126 approved for transfer

The task force recommended 126 for transfer by the time it finished its review in 2010. In a handful of cases, the task force determined there was little evidence they were involved in terrorism or in attacking U.S. forces in Afghanistan. The rest were deemed to be mostly uneducated, unskilled, low-level fighters who received training in Al Qaeda’s camps and may have fought beside the Taliban.

Just because a detainee was transferred did not mean they posed no threat. Instead, it meant the government believed any threat they posed could be mitigated. In most cases, detainees were sent to countries where they could be monitored and offered a chance to live normal lives. In some cases, they were transferred to countries where they would face possible prosecution. Others were placed in rehabilitation programs.

36 referred for prosecution

Of the 114 detainees that remained, 36 were referred for prosecution. The Justice Department and Defense Department established a process to determine whether cases should be tried in federal court in America or in front of a military commission at Guantanamo. However, Congress soon blocked the Obama administration from trying any detainees on U.S. soil, leaving the administration with little choice but to rely on military commissions.

30 approved for “conditional detention”

Detainees from Yemen posed a unique challenge due to deteriorating security conditions in their home country. While some were recommended for transfer, and others for prosecution or continued detention, a group of 30 fell into a fourth category: They posed a lower threat than detainees marked for continued detention, but the task force recommended they not return to Yemen until security conditions there improved. The designation would leave them near last in line to be considered for transfer.

48 designated for “indefinite” detention

The task force was then left with 48 individuals who were designated for continued detention. The government said they were too dangerous to transfer, but that prosecution was “not feasible in either a federal court or a military commission.”

The task force determined that the 48 had one or more of the following characteristics: held leadership roles in Al Qaeda, the Taliban or their affiliates; had advanced training or combat experience; had a history of links to extremism or had signaled that they might return to extremist activities. The detainees came to be known as “forever prisoners.”

30 of 48 “forever prisoners” transferred

In 2011, the Obama administration redoubled its efforts to shrink the Gitmo population by establishing a parole-like board for those held there without trial. The Periodic Review Board would re-assess all available intelligence about the detainees to consider whether they still posed a threat or if they could be transferred. The board would not rely on information obtained through “torture or cruel, inhuman, or degrading treatment” — significant because some allegations made about detainees were considered unreliable because they were extracted using coercive methods or so-called “enhanced interrogation” techniques such as waterboarding, sleep deprivation and more.

The review board process would ultimately lead to the transfer of 30 of the 48 men who in 2010 were deemed too dangerous to release yet unable to be tried in court or by military commission. Final determinations that the board released when it approved these transfers help illuminate why the U.S. government reassessed its original stance that they were too dangerous to transfer. They fall roughly into three categories: low-level fighters, detainees who showed a changed in behavior, and those who represent a more manageable risk.

Threat can be mitigated

The Periodic Review Board noted that these detainees were at one point dangerous — and that some remained sympathetic to extremist groups — but decided that with proper security measures, “the risk the detainee presents can be adequately mitigated.” In many cases, these detainees were sent to rehabilitation centers in Kuwait, Oman or Saudi Arabia.

Low-level fighters

The review board determined these detainees were not high-ranking members of Al Qaeda or the Taliban, and they often had a low level of training or involvement with terrorist groups. In some cases, the government couldn’t be sure the detainee was ever a member of those groups to begin with.

Change in behavior

These detainees showed “candor in dealings” with U.S. officials, “expressed remorse” or “admitted past mistakes” and did not “express intent to re-engage with extremist activity,” according to the Periodic Review Board. While detainees in other categories showed similar changes in behavior, these factors appeared to be the most significant ones cited by the board in recommending these detainees’ release.
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