Detainees in orange jumpsuits sit in a holding area under the eyes of military police during in-processing to the temporary detention facility at Camp X-Ray of Naval Base at Guantanamo Bay.Photo: Reuters
Desperate to empty the Guantanamo Bay prison by the end of his term, Obama quietly is giving “get out of jail free” cards for the flimsiest of excuses.
One al Qaeda suspect captured in Afghanistan is considered reformed because he took up yoga and read a biography of the Dalai Lama. Another is eligible for release because of his “positive attitude.”
And one longtime detainee, a former bodyguard for Osama bin Laden, is now harmless because he’s going to start a “milk and honey farm.”
The Periodic Review Board already helped clear 78 of the remaining 149 prisoners for release, documents show, and has scheduled more hearings for this summer.
Many of these men were dubbed “forever prisoners” because of the threat they posed to the US — with intelligence officials warning that, if free, they would return to the jihad to kill Americans.
Based on past cases, that’s a good bet.
In a report on detainee recidivism, Obama’s own director of national intelligence this year documented that 178, or 29 percent, of the 614 prisoners already transferred from the prison have been confirmed to have, or are suspected of having, re-engaged in terrorism.
That means for every three freed from Gitmo, one has rejoined the war against us. Intelligence analysts admit their ability to track all former detainees is limited, so the recidivism rate may, in fact, be much higher.
A detainee in an orange jumpsuit is seen being led by US Army military police.Photo: AP
One notorious recidivist, Abdullah Gulam Rasoul, became the Taliban’s operations commander in southern Afghanistan soon after his 2007 release from Gitmo. He was blamed for masterminding a surge in roadside attacks against American troops and organizing assaults on US aircraft in Afghanistan.
Another repeat terrorist is Said Ali al-Shihri, who after his 2007 release ran al Qaeda’s Yemeni branch and helped plan the deadly bombing of the US Embassy there.
Already, one of the five Taliban leaders freed last week in exchange for Bergdahl — Mullah Noorullah Noori — has pledged to return to fight Americans in Afghanistan.
Obama’s terrorist parole board was established in 2011. He appoints its members — officials from the Justice Department, Pentagon, State Department and Homeland Security — without a congressional confirmation process. It is secretive and lacking in accountability.
In setting up the Periodic Review Board, meanwhile, Obama prohibited members from relying on information that has been obtained as a result of “cruel, inhuman or degrading treatment (in order) to support a determination that continued law of war detention is warranted for a detainee.”
The bias against interrogation evidence potentially opens up the release of some of Gitmo’s hardest cases, including al Qaeda leader Abu Zubaydah, 2002 Bali bombing mastermind “Hambali,” and Mohammed al-Qahtani, the suspected 20th hijacker of the 9/11 attacks.
But these releases won’t cause the same outcry, because it’s being done in virtual secrecy. Already, more than 600 prisoners have been transferred out of Gitmo with little fanfare. Two hundred of them were sent back to Afghanistan.
As defense lawyer David Remes explained to Al Jazeera news network, “The Periodic Review Board is likely to be predisposed to approval to transfer because the idea here is to close down Guantanamo.”
What he did: Classified as an “indefinite detainee” in 2010 because of the danger he posed to the US. The Yemeni national was captured in 2001 fighting in Afghanistan. The military said he was a troublemaker while in custody, even inciting riots. He was uncooperative in interviews, showing “ill intentions toward the US.” One of his brothers in Yemen is a leader in al Qaeda in the Arabian Peninsula, the terror group’s most lethal branch.
What they say now: His government-appointed lawyer argued he was merely an assistant cook for an unspecified military group. “He has asked for yoga magazines and self-help books,” lawyer Pardiss Kebriaei told the parole board in April, noting he practices yoga in his cellblock and has read biographies of the Dalai Lama and Martin Luther King Jr.
In his own plea to the board, Bihani suggested his hostility comes from losing his parents as a boy, saying, “It was hard growing up without a mother or father.” He promised to start a family and live a peaceful life if freed. “I look forward to the day when I can hold my baby in my hands,” he said. Last month, the board said it found his story “credible” and declared al-Bihani “no longer…a threat to the security of the United States.”
What he did: Served as Osama bin Laden’s bodyguard and was captured after 9/11. The military warns that, if freed, he would likely hook up in Yemen with his brother, “another former bin Laden bodyguard.”
Without explanation, the board blacked out a large section of Mujahid’s testimony dealing with al Qaeda.
What they say now: “Mujahid is a peacemaker,” his lawyer David Remes insisted, adding he “requires no rehabilitation when he returns.”
Mujahid called a character witness — another detainee — who testified that Mujahid had told him he wants to start a “milk and honey farm” in Yemen.
In November, the board cleared Mujahid for release, reasoning he would maintain his good behavior through “extensive family support in Yemen.” Panelists were impressed with his personal statement that, while growing up, “in our household, we were taught politeness, decency and human being [sic].”
What he did: Served as an Osama bin Laden bodyguard. There’s evidence he wrote to his family boasting of his commitment to jihad. The military cautioned officials against believing that “his stated intentions are genuine.”
Curiously, the board withheld Razihi’s written testimony and hearing transcript.
What they say now: In taking him off the threat list, the board cited his “positive attitude.” His personal representative convinced board members that Razihi “has keen business acumen” and seeks to take over the family’s “fruit and vegetable business” in Yemen.
Added the unnamed government advocate: “He’s ready to live out the rest of his days as a peaceful man, a family man and an entrepreneur, and no longer should be considered a continued significant threat to the United States.”
Prisoners in Gitmo at height in 2003: 684
Prisoners left: 149
Cleared for transfer but not yet released: 78
Prisoners, including 9/11 mastermind Khalid Sheik Mohammed, who are considered “high-value detainees” charged with war crimes: 16
There are deals in place to transfer dozens of the remaining 149 men being detained in Guantanamo Bay, an administration official speaking in anonymity tells ABC News.
But the release of these men -- described as low-risk cooks, drivers, and bodyguards -- are backlogged in the system and stalled by "fear" of political blowback, heightened this week with the swap of five Taliban prisoners for Sgt. Bowe Bergdahl.
Although 78 detainees have already been cleared for transfer back to their homeland or a third country, a transfer can only be made after Congress is given 30-day notice, a requirement skipped by President Obama in the controversial prisoner swap.
Despite resistance by several Congressional lawmakers, the president is continuing to push to close the prison. But the administration faces two big dilemmas.
The first is determining which current detainees may still pose a threat. The second challenge is finding a suitable destination for these men that won't draw the ire of Congress.
Cliff Sloan, one of two envoys the president tasked with closing down the facility says the administration will have to work with Congress to change U.S. law that prohibits detainees from entering U.S. soil.
"For detention and trial and prosecution, we think people should be allowed to be brought to the United States, our super max [prison] facilities are very secure and we have hundreds of people convicted of terrorist offenses in our super max prisons," Sloan said. "In addition to other issues with Guantanamo, it is enormously expensive. ... [It's] 2.7 million [dollars] per detainee each year compared to in our super-max prisons at the high end around 78,000 [dollars] each year."
33 men in Gitmo are either serving sentences or in most cases have been referred for prosecution. Among these men, described as the worst of the worst are detainees like 9/11 architect Khalid Sheik Muhammad. But that leaves the remaining 149 detainees facing an uncertain future.
Sloan says the State Department is talking with more than 25 nations regarding the detainees who may not pose as a future security risk and have been cleared for transfer.
"We don't need to have Guantanamo open. It is hurting us," Sloan said.
This year a new Periodic Review Board, comprised of a member from several government agencies began taking another look at the detainees not cleared for transfer.
For a detainee to be transferred he has to receive approval from the Department of Defense, Joint Chief of Staff, State Department, Homeland Security, Justice Department and the Director of National Intelligence to be sent a place where appropriate security measures are in place and where they will be treated humanely.
"What it means when they are approved for transfer [is] that it received this broad unanimous determination by all six of these departments and agencies," Sloan said. "Everything that we do has security first and foremost in our mind. We don't make a transfer unless we are convinced we have appropriate security measures already in place."
ABC News travelled to Gitmo earlier this year to see conditions on the ground first-hand as this periodic review process began.
Inside the corridors of Camp 6 where "compliant" detainees reside it's dark, and we were asked to be quiet. We watched through double sided glass as detainee ate lunch. In Gitmo, even food spurs backlash. We watched the guard force put on protective shields as they interacted with the prisoners.
What we were barred from seeing were the force-feedings, or enteral feedings as the military calls it, that began last year after a hunger-strike swept the prison.
The Department of Defense no longer reports how many detainees continue to strike. But according to attorneys who work with the detainees they began in protest of their continued detention and living conditions.
"I don't have any doubt that it's in our interest for them to be detained and taken off the battlefield. Everyone of the detainees in some fashion or form was picked up on a battlefield," said Admiral Richard Butler, who is wrapping command this summer over the Joint Detention Task Force. He contests the suggestion by some that the detainees are harshly treated.
"The security procedures we use here by some might look very strict but they are standard procedures that are used in federal bureau prisons, and other military prisons," Butler said.
Butler said the detainees live under strict guidelines, which can include near isolation in some instances and constant surveillance in all cases, because of his biggest priority, which is to protect the guard force watching the men.
He says he "fully supports" the president's call to close the camps, but does have concerns about the release of detainees.
"As a private citizen and a military officer I think we need to be concerned about it because I think once we transfer to another country we obviously lose control," Butler said. "I think that's why the process to transfer the detainees is very methodical and everyone who is part of that process has that same concern."
David Remes, who has represented more than a dozen detainees says Gitmo is a betrayal of American values.
"It is never-never land. These men are ghosts. They are not being held for who they are. They are being held for our idea of who they are," he said. "My experience with my clients is they came there when they were 19. They are now in their early 30s. They have wasted a third of their lives. They want to go back to their families, their communities, their jobs. They don't want to be in a position where they are sent to Guantanamo again.
Remes says many of the detainees he has worked with have become more religious since living in Guantanamo in part because of the strain of living there.
"I don't know how they do it day after day, surrounded by guards, mistrusted by everyone," Remes said. "I just don't know how they do it."
In Guantanamo, there are men like six detainees who are described as low-risk who have been approved for transfer to Uruguay since 2009, according to an administration official. There is a growing concern that detainees like these men may have their transfers held up even longer because of "politics."
But decisions will also have to be made about the more dangerous high-value detainees, some of whom will soon face military commissions. The question remains whether they will ultimately remain on the Cuban base or eventually make it to U.S. shores.
And whether one of the president's earliest campaign pledges -- to close Guantanamo -- is fulfilled before he leaves office hangs in the balance.