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Finding Justice at Guantanamo: An Interview With a Former Military Lawyer

Campaigns and domestic pressure led to 10 Kuwaiti nationals held at Guantanamo Bay being released by 2009.

On 5 November, 37-year old Kuwaiti Fawzi Al-Odah became only the second low-level prisoner held at Guantánamo Bay to be released in 2014. He is the first person to be transferred after having been cleared for release by the Periodic Review Board (PRB) established to determine whether prisoners stuck in the limbo of indefinite detention, and who cannot be charged or tried, continue to represent a threat to the security of the United States, thereby justifying their continued detention.

Campaigns and domestic pressure led to 10 Kuwaiti nationals held at Guantánamo Bay being released by 2009. Al-Odah and his compatriot Fayiz Al-Kandari, 39, remained. Both were accused of having links to Al Qaeda, on the basis of hearsay evidence obtained from interrogations of other prisoners. Al-Odah was never charged, but a case was filed against Al-Kandari which was later dropped along with all charges; he was never tried. Both men maintain they travelled to Afghanistan in the early 2000s for charitable and humanitarian purposes.

Al-Odah’s release came one day after the US midterm elections, which saw a huge swing to the right-wing Republican Party, reportedly in protest at Barack Obama’s failure to keep election promises. Back in 2008, the closure of Guantánamo was one of his key promises. With 148 prisoners remaining, more than half of whom have been cleared for release, it is difficult to say whether Guantánamo will close in his last two years in office and what the fate of prisoners stuck in indefinite detention like Fayiz Al-Kandari will be.

I put some questions to Fmr. Lt. Col. Barry Wingard, lawyer of remaining Kuwaiti prisoner Fayiz Al-Kandari, to ask what this latest release means and what lies ahead for Al-Kandari and the other 147 Guantánamo prisoners.

Fawzi Al-Odah’s release comes just one day after the US midterm elections. What was the political message behind the timing?

We don’t know what it means politically, but we sure hope that we see more of it in the near future. Remember that these men have been held in Guantánamo without charge, let alone trial, for almost 13 years. Thirteen years is a jail sentence in itself so we should be talking about release or demanding charges be filed immediately.

Fawzi Al-Odah was released ahead of dozens of prisoners who have been cleared for release for years, such as British resident Shaker Aamer. Another Kuwaiti national, your client Fayiz Al-Kandari, also remains at Guantánamo Bay. Can you explain why that is?

There really is very little rationality to be found in decisions made in Guantánamo. If you’re a Taliban commander, then you might be released before your fellow Afghans who were cleared for release years ago. You never know what goes into these decisions, but no one will disagree that many decisions are purely political and nothing more. When Guantánamo finally closes, fewer than 20 of those 779 men ever held will have had something resembling a trial. It sure would be nice if the US government would provide definitive guidance to secure prisoner releases going forward, but of course that will not happen.

There are usually conditions attached to release from Guantánamo, even if the returnee has been cleared. What can Fawzi Al-Odah expect back in Kuwait?

Both Fayiz and Fawzi agreed to all the terms and conditions put forward by the Kuwaiti and US governments, so we know that’s not the problem. As for Fayiz, he will not be reissued his passport and agrees not to travel abroad. It is basically the same as what former Kuwait prisoners have agreed to.

Do you believe that the Kuwaitis will continue to make high-level efforts for the release of Fayiz Al-Kandari

We certainly hope the Kuwaiti government will continue their efforts for both Fayiz and Fawzi. We hope to see the big effort initiated by the Kuwaiti government in September 2013 continue. In the end, we all accept the notion that Fayiz will never receive a trial; the US government abandoned that notion years ago. In courts, even really bad ones like the Military Commissions in Guantánamo, rumors and conjecture is not evidence.

A prisoner periodic review board found Al-Kandari to still be too dangerous to release. Having represented him since 2009 and having met him dozens of times, what can you say about Fayiz Al-Kandari as a person?

I challenge you to go to the PRB site online and read both men’s case material, then the decision at the end and then try explaining the ending to me. In Fayiz’s case the panel concludes essentially that he has a bad mindset and is angry. Only in Guantánamo are your future thoughts considered a potential crime. If you think he has thoughts that are illegal, then prosecute him for them, if not release him immediately.

You’ve recently retired from the US military. Does this in any way affect your ability to represent Al-Kandari?

I retired from the military in an effort to provide better representation in Fayiz’s case. As a military officer I was prohibited from traveling to Kuwait. With my retirement after 30 years in the US military, I can now travel and zealously represent my clients to the fullest extent.

What is the future likely to be for the 40 or so “forever prisoners” like Al-Kandari, who are too dangerous to release but cannot be charged or tried?

Again, everyone agrees that the US will be unable to provide the most basic of human rights and provide a trial to Fayiz. That being said, who knows what lies at the end of the road when the PRB is assessing other’s “mindsets” and possible future actions? We all thought the al Salam Rehabilitation Center located in the Kuwait Jail was designed to treat “mindsets” and help direct future actions. We really need the Kuwaiti government to continue to push the US government into doing what’s right irrespective of political objections within the US.

Fayiz is certainly not “too dangerous to release”; in fact Fayiz has always been extremely compliant in Guantánamo and has a long history of doing humanitarian and charity work before that.

What can and should people in the US and elsewhere be doing to help prisoners like Al-Kandari?

People of every society should never accept any government holding individuals without at least providing them an opportunity to represent themselves in a system that is neutral and just. I don’t care what government or individual is involved. Now that Fawzi is home, we are exploring ways forward for Fayiz. We would ask that people not be defeated and get involved in Fayiz’s case. It may not be you today, but it will be someone you know if you’re not holding the government accountable. Trust me, the US would not allow an American citizen to suffer like Fayiz and Fawzi have suffered for more than a decade.

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