Abdellatif Nasser got what he thought was the best news possible in the summer of 2016: One of his lawyers called him at the Guantanamo Bay detention center and told him that the U.S. decided he no longer posed a threat and could go home to Morocco.
The prisoner allowed himself to get excited, to think about Moroccan food, imagining he would be home in no time. “I’ve been here 14 years,” he said at the time. “A few months more is nothing.”
But his optimism turned out to be misplaced. A diplomatic agreement that would have allowed him to go free was not returned by Morocco until Dec. 28, eight days too late to meet a deadline to be among the last prisoners to leave under President Barack Obama.
Now, he is one of five prisoners who the U.S. cleared to go but whose freedom is in doubt under President Donald Trump.
“We had hoped until the last moment that he might still be released,” said Shelby Sullivan-Bennis, the lawyer who told him about his pending release and shared her notes from the conversation. “When it didn’t happen we were crushed. That eight-day foible has turned into a potential lifetime of detention.”
The Trump administration has not released any prisoners and not added any to the list of cleared men who can go home, or to a third country, for resettlement. There were 197 transferred out under his predecessor and more than 500 under President George W. Bush.
Obama sought to close the detention center but was thwarted by Congress because of objections over transferring any of the remaining detainees to facilities in the U.S.
“It is entirely unprecedented for an administration to take the position that there will be no transfers out of Guantanamo without regard to the facts, without regard to individual circumstances,” said Pardiss Kebriaei, a detainee attorney with the New York-based Center for Constitutional Rights.
The administration has not announced its policy toward the detention center. But Trump said on Twitter before he took office that there should be no further releases from “Gitmo,” as it’s often called. “These are extremely dangerous people and should not be allowed back onto the battlefield,” he said.
Air Force Maj. Ben Sakrisson, a Pentagon spokesman for issues related to Guantanamo, said detainee case files will still be reviewed on a periodic basis but the government “is still considering whether or not to transfer detainees.”
A National Security Council spokeswoman, Tara Rigler, noted that the president has said the detention center will “remain an available option in the war on terrorism.” She said he will make any decisions related to detainees “on a case-by-case basis and in the best interest of the United States,” but she declined to go into further detail.
The possibility that former Guantanamo prisoners would resume hostile activities has long been a concern that has played into the debate over releases. The office of the Director of National Intelligence said this summer in its most recent report on the subject that about 17 percent of the 728 detainees who have been released are “confirmed” and 12 percent are “suspected” of re-engaging in such activities.
But the vast majority of those re-engagements occurred with former prisoners who did not go through the security review that was set up under Obama. A task force that included agencies such as the Defense Department and CIA analyzed who was held at Guantanamo and determined who could be released and who should continue in detention. The previous administration also created a Periodic Review Board that considered not just the potential threat, but also such factors as detainees’ behavior in custody and their prospects for meaningful work on the outside. The recidivism rate for those released after those measures were adopted dropped to 4 percent confirmed and 8 percent suspected.
The 41 remaining prisoners include the five approved for transfer and 10 who have been charged by military commission. That leaves 26 in indefinite confinement who could potentially be reviewed and added to the cleared list. Several may still be prosecuted and are unlikely to be set free, but lawyers for the rest are considering filing new legal challenges, arguing that a policy of no releases would mean their confinement can no longer legally be justified as a temporary wartime measure.
In addition to Nasser, the prisoners who have been cleared for release come from Algeria, Yemen and Tunisia. Another was born in the United Arab Emirates but has been identified in Pentagon documents as an ethnic Rohingya who is stateless.
A review board cleared the Algerian, Sufiyan Barhoumi, and he was expected to go just before Obama left office, but then Defense Secretary Ash Carter did not sign off on the transfer and he had to stay behind despite a last-minute legal appeal filed in a federal court in Washington on behalf of him and Nasser. The other three have been approved for release by the task force since at least 2010. It’s not publicly known why the U.S. has not been able to resettle them. A lawyer appointed to represent the one born in the U.A.E. says the man has never agreed to a meeting.
“The daily reality of what it means to them is really settling in,” said Sullivan-Bennis, who met with Nasser and other detainees at the base last week to discuss legal strategies as the men near their 16th year confined at the U.S. base on the southeastern coast of Cuba.
Nasser’s journey to the prison was a long one.
Now 53, he was a member of a non-violent but illegal Moroccan Sufi Islam group in the 1980s, according to his Pentagon file. In 1996, he was recruited to fight in Chechyna but ended up in Afghanistan, where he trained at an al-Qaida camp. He was captured after fighting U.S. forces there and sent to Guantanamo in May 2002.
An unidentified military official appointed to represent him before the review board said he studied math, computer science and English at Guantanamo, creating a 2,000-word Arabic-English dictionary. The official told the board that Nasser “deeply regrets his actions of the past” and expressed confidence he would reintegrate in society. The board approved him by consensus in July 2016.
When Nasser learned he wasn’t going home, he initially stopped taking calls from his lawyers and they feared he might try to kill himself, Sullivan-Bennis said. More recently, she said, he has tried not to lose hope.
Another of his reprieve attorneys, Clive Stafford-Smith, said after visiting the prisoner at Guantanamo last week that Nasser is worried some in his large extended family won’t recognize him if he does go home.
“He holds it in,” the lawyer said. “You can see tears welling up in his eyes but he tries to put up a positive front.”
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