The Defense Department announced today that Fayez al Kandari, who was detained at Guantanamo since 2002, has been transferred to his home country of Kuwait.
The Pentagon cited a Sept. 8, 2015 decision by the Periodic Review Board (PRB) as justification for Kandari’s transfer. The PRB “determined that continued law of war detention of [Kandari] does not remain necessary to protect against a continuing significant threat to the security of the United States.” Therefore, the review board recommended that Kandari be transferred and the Pentagon complied.
But the PRB did not determine that Kandari was an innocent who was wrongly detained. Nor did the PRB argue that Kandari should be outright released. Instead, the board recommended “the implementation” of a “comprehensive set of security measures…including monitoring, travel restrictions, and continued information sharing.”
These “security assurances” are necessary because US officials have repeatedly warned that Kandari is a threat.
As The Long War Journal has reported in the past, US military and intelligence officials compiled an extensive dossier on Kandari. Declassified and leaked files, as well as a district court ruling, indicate that US intelligence analysts suspect Kandari helped recruit an al Qaeda cell responsible for killing a US Marine on the Faylaka Island in Kuwait in October 2002.
Indeed, US authorities recommended against transferring Kandari on at least three occasions in the past. And a district court denied Kandari’s petition for a writ of habeas corpus, finding that his claim of being in the wrong place at the wrong time in Afghanistan in 2001 was simply not credible.
A “high risk”
In a leaked threat assessment, dated April 15, 2008, Joint Task Force – Guantanamo (JTF-GTMO) deemed Kandari a “high risk,” who is “likely to pose a threat to the US, its interests and allies.” JTF-GTMO’s analysts recommended that Kandari remain in the Defense Department’s custody, finding that he was a “committed member of al Qaeda who served as [an] advisor and confidant to” Osama bin Laden.
Kandari “has numerous connections to senior al Qaeda members and was an influential religious figure for al Qaeda fighters in Afghanistan,” JTF-GTMO found. He also allegedly “provided ideological training to al Qaeda trainees” and acted as a “propagandist” on behalf of the terrorist group.
President Obama’s own interagency Guantanamo Review Task Force agreed that Kandari should not be transferred or released.
In its final report, released in January 2010, the task force wrote that there were 48 detainees who “were determined to be too dangerous to transfer but not feasible for prosecution.” Kandari was one of them. Obama’s task force recommended that Kandari be held in “[c]ontinued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war.”
Nine months later, in September 2010, a district court judge denied Kandari’s petition for a writ of habeas corpus. District Judge Colleen Kollar-Kotelly ruled that Kandari’s claim to have been a mere charity worker in Afghanistan prior to the Sept. 11, 2001 terrorist attacks was “implausible” and “not credible.” [See LWJ report, Judge finds that Kuwaiti Gitmo detainee was no charity worker.]
According to Judge Kollar-Kotelly’s decision, Kandari fled to the Tora Bora Mountains in late 2001. Kandari admitted that he “was given a Kalishnikov rifle and taught how to use it.” He also “met and associated with various members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces” in Tora Bora. Given that Kandari admittedly was armed at Tora Bora, shown how to use the weapon, and met with senior al Qaeda terrorists, Judge Kollar-Kotelly found it was unreasonable to assume that Kandari accidentally found his way into the mountains at precisely the same time that al Qaeda’s forces were battling in the area.
A Periodic Review Board (PRB) heard Kandari’s case in 2014 as well, but came to precisely the opposite conclusion of the one cited by the Defense Department today. Kandari’s continued detention “remains necessary to protect against a continuing significant threat to the security of the United States,” the PRB wrote in an unclassified summary of its decision, which was released in July 2014. [See LWJ report, Kuwaiti Gitmo detainee should remain in US custody, review board finds.]
The differences between the PRB’s decisions in 2014 and 2015 are striking. In 2014, the review board concluded that Kandari “almost certainly retains an extremist mindset and had close ties with high-level al Qaeda leaders in the past.”
In 2015, however, the PRB claimed that Kandari had “demonstrated a willingness to examine his religious beliefs and engaged more openly with the Board.” The PRB “noted [Kandari’s] willingness to engage with Kuwaiti officials and rehabilitation center staff members, comply with security requirements, and disassociate with negative influences since his last hearing.”
The PRB did not explain further why Kandari, a committed jihadist since before the Sept. 11, 2001 attacks, should be believed with respect to his supposed “willingness” to re-examine his “religious beliefs.”
The PRB also did an about-face when it comes to Kuwait’s ability to mitigate the “threat” Kandari poses.
In 2014, the PRB “noted a lack of history regarding the efficacy of the rehabilitation program Kuwait will implement for a detainee with [Kandari’s] particular mindset, but appreciates the efforts of the Kuwaiti government and encourages the officials at the Al Salam Rehabilitation Center to continue to work with [Kandari] at Guantanamo.”
But in 2015 the PRB “determined [Kandari’s] threat can be adequately mitigated by the Kuwaiti government’s commitment to require and maintain [Kandari’s] participation in a rehabilitation program and to implement robust security measures to include monitoring and travel restrictions.”
It remains to be seen which one of the PRB’s decisions proves to be more prescient.
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