On Wednesday, the Trump administration transferred longtime detainee Ahmed al-Darbi out of Guantánamo Bay. Although al-Darbi isn’t going free, this first transfer of a Guantanamo prisoner under the Trump administration is still a big deal.
Detained at Guantánamo since 2002, al-Darbi pleaded guilty in 2014 to military commission charges relating to a 2002 attack on a French oil tanker. In exchange for his promise to provide testimony against other detainees, the government agreed to transfer him to Saudi Arabia by 2018 to finish out his sentence. In 2017, he was sentenced to 13 years of confinement dating back to 2014—on top of the 12 years he’d already been detained.
The Trump administration’s willingness to follow through on the commitment prosecutors made with al-Darbi signals that it does not want to flagrantly disregard the military commissions’ own prior agreements. This is consistent with President Trump’s January executive order on Guantanamo, which stated:
“Nothing in this order shall prevent the Secretary of Defense from transferring any individual away from the U.S. Naval Station Guantánamo Bay when appropriate.”
Al Darbi’s transfer underscores that the administration is not categorically opposed to transferring detainees out of Guantánamo. There are five detainees still at Guantánamo who were cleared for transfer out of the prison by all relevant U.S. security and intelligence agencies years ago. Toffiq al-Bihani, for example, was cleared to leave in 2010—eight years ago—but he remains at Guantánamo. Like Darbi, he too wanted to go to Saudi Arabia, where he has family. Unlike Darbi, he wasn’t convicted of any crime—and like the vast majority of Guantánamo detainees, has never even been charged with one. Still, he’s been imprisoned, cut off from family and friends, and with only intermittent access to lawyers for more than a decade. He was transferred there after being tortured at a CIA black site and has been in U.S. custody without charge or trial for more than 15 years.
The Trump administration has essentially just conceded that transferring select detainees out of Guantánamo need not endanger U.S. national security. President Trump in January ordered Defense Secretary James Mattis to make recommendations about the disposition of current detainees, or the transfer of new ones to Guantánamo, by April 30. We don’t know what Mattis recommended because the administration hasn’t made those recommendations public. But Mattis and the administration can at least follow through on the transfers of five men who’ve never been charged and have been cleared for transfer by the intensive multiagency Guantánamo review process itself.
That would be completely consistent with president’s executive order. It would also provide some assurance to U.S. allies that have long criticized Guantánamo that this administration is making an effort to follow through on the United States’ previous commitments and seeking an end, at least in some cases, to an astonishing 15 years of unlawful indefinite detention.
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