The Guantanamo Bay prisoner whose fate was sealed by a Trump tweet

Abdul Latif Nasir had been told he was free to go home. It was not as though he had much to pack; after 14 years as a detainee at the ill-famed Guantanamo Bay jail, he had few possessions other than his reading glasses and a 2,000 word English-Arabic dictionary he himself had created. In Morocco, his family prepared for him to start a new life. A brother in Casablanca, who owned a pool-cleaning and water purification company, lined up a job. Someone arranged a place for him to live. His family even found him a bride.

But it was not to be. Having been cleared for release by six governmental agencies – and having never been charged with a crime, let alone tried and convicted – Latif, as he is known, was told he had to stay at Guantanamo, the jail established on a US military base on the southeast tip of Cuba after 9/11. There was to be no homecoming celebration, no job cleaning the swimming pools of upper-class Casablancans. No wedding ceremony. No chance for Latif to pursue his dream of becoming a mathematics teacher.

“To prevent someone from his freedom after he’s been cleared is a very painful thing,” Latif told one of his lawyers, in a comment recently shared with The Independent, having been declassified by the US authorities. “No one can understand this kind of disappointment – to be cleared by six high American agencies and after that someone comes and says ‘no you have to stay here.’ I have no words to describe it.”

The Periodic Review Board (PRB), set up in Barack Obama’s era to speed up the transfer and release of prisoners held in Guantanamo, decided in 2016 that Latif’s detention was no longer necessary. Yet two things combined to shift Latif’s fate. One was a bureaucratic delay between him being cleared for release by the US, and the formal agreement to accept him by the government in Rabat, as Obama’s second term neared its end. The second was a tweet, posted on 3 January by Donald Trump, who two months earlier had been elected to take Obama’s place in the White House.

“There should be no further releases from Gitmo,” Trump wrote, two weeks before he would start his term. “These are extremely dangerous people and should not be allowed back on to the battlefield.”

The story of Latif, detainee #244, and four other prisoners cleared for release – Sufyian Barhoumi, #694, an Algerian, Tawfiq Al-Bihani, #893, who is from Yemen, Muieen Adeen Al-Sattar, #309, who has Rohingya ancestry, and detainee #38 Ridah Bin Saleh Al-Yazidi, who is Tunisian – is one of many forgotten tales in America’s so-called war on terror, hastily embarked upon by George W Bush in the aftermath of the al-Qaeda attacks on New York and Washington.

It was a decision that would take the nation on a journey to many dark places: to torture and waterboarding, to rendition flights and secret “black sites” in friendly foreign countries, all considered to be both out of the public eye and separated from the normal judicial system and congressional oversight. No place better came to symbolise that clandestine world than Guantanamo, preparations for which were being hatched even as the rubble and twisted steel of the twin towers was being removed. At its height, the prison housed 780 prisoners, the vast majority of them swept from Afghan battlefields or towns, and sold to the CIA by rival warlords, often with the Pakistani intelligence services acting as a well-rewarded intermediary.

Today, there are just 40 left, held under the Authorisation for the Use of Military Force Act passed by Congress 2001, in the wake of 9/11, and each man annually costing $13m to detain. Many Americans likely assume it was long ago shuttered, as Obama vowed to do as early as 2007. And while the US military is finally moving ahead to prosecute seven men accused of orchestrating the 9/11 attacks, among them Ramzi bin al-Shib and Khalid Sheikh Mohammad, the five men cleared for release, along with two-dozen inmates not yet processed, live in a state of suspended animation. Washington expresses no plan to charge them, yet it will not let them go.

“This has been one of the most catastrophic episodes in the history of criminal law,” says Clive Stafford Smith, the founder of legal rights group Reprieve, which has represented many Guantanamo prisoners, and who visited Latif recently. “Abdul Latif’s situation is worse than anyone’s. It’s worse than a prisoner on death row, because at least the death row prisoner can appeal.”

He adds: “Abdul Latif is in the worst position. He was told he was free, and now he has been told he has to stay there forever.”

The US has alleged Latif, 54, has for decades been attracted to fundamentalist Islam, and that at high school and college he was a member of Jamaat al-Adl wa al-Ihssan, which translates as Justice and Charity Organisation. When Morocco began clamping down on the group in the 1990s, a department of defence memo written in 2008 and published by Wikileaks, says he left, first to Libya and then to Sudan. It says in 1993 he went to Sudan in “search of a perfect Muslim society”.

It was there he first met Osama bin Laden, the US military claimed. After failing to travel to Chechnya, where many Muslims volunteered to fight against Russian forces, he travelled to Afghanistan, via Pakistan, where he is said to have received weapons training. It claims he was an “emir” of Arab fighters defending Kabul against the advance of northern alliance and US forces in the autumn of 2001, after the US-UK invasion. It says he was among 50 Al-Qaeda members captured close to the final hold-out at Tora Bora by northern alliance fighters and transferred to the custody of the US.

As part of its reasoning to detain him, the US military wrote in 2008: “Detainee is assessed to be a HIGH risk, as he is likely to pose a threat to the US, its interests, and allies.”

Lawyers for Latif and the others question much of this evidence, and say many of the claims have been discredited. Crucially, they say the accusations against him have never been tested in court, and that he and the others have been denied due process. They say to pass a PRB hearing, prisoners are required to display “candour”, which they say can mean to confess to unchallenged accusations presented by the government. Others have pointed to the environment in which Latif and hundreds of prisoners were captured as Afghanistan and its Taliban regime crumbled. (Some of the same Taliban officials have been involved in recent peace talks with the US authorities.)

In his 2006 memoir, In the Line of Fire, Pakistan’s Pervez Musharraf revealed the CIA was paying bounties of up to $5,000 – an enormous sum in South Asia – for al-Qaeda and Taliban suspects. “Many members of Al-Qaeda fled Afghanistan and crossed the border into Pakistan,” he wrote. “We have played cat and mouse with them. We have captured 689 and handed over 369 to the United States. We have earned bounties of millions of dollars. Those who habitually accuse us of ‘not doing enough’ in the war on terror should simply ask the CIA how much prize money it has paid to the government of Pakistan.”

His comments led Amnesty International to allege hundreds of people had been illegally detained. “Bounty hunters, including police officers and local people, have captured individuals of different nationalities, often apparently at random, and sold them into US custody,” said Claudio Cordone, then Amnesty’s senior director of research. “The road to Guantanamo very literally starts in Pakistan.”

There are people waiting for Latif to come home. They have been waiting a long time. “Within 24 hours of hearing the news [he had been cleared for release] we started preparing to welcome him back, because we were so happy. Those who were in contact with him in prison all speak about his good character, so we were happy to receive him.”

These are the words of Mustafa Nasir, one of Latif’s two brothers who recently spoke from Morocco by Skype with ABC News. “The entire family was relieved and was helping with the preparations. Everyone was doing something, one person prepared the house he would live in, another his room, we even found a potential bride for him to marry. At the end, this happiness and promise was broken,” he said.

The family, which includes five sisters, two brothers and many cousins, said it had not heard from Latif for many years after he left the country as a young man. Then at some point, they were contacted by a representative of the International Committee of the Red Cross (ICRC) to say he was being held in Guantanamo.

“This was a shock, beyond shocking. The news we got wasn’t positive,” said Mustafa. “My brother, the one we knew for being empathetic, peaceful, intelligent, hardworking, educated, someone who completed his baccalaureate during a time when this was very difficult and wasn’t the norm. He went to university and did well.”

A cousin, who asked not to be identified, said: “Overall, the family was in shock because he has always been a good person.”

The family says that when they spoke to him earlier in the year, Latif was “stressed, angry and lost hope about having a life outside Gitmo”. They say he told them: “So many years were lost of my life, even three years after the clearance have passed, I could have returned to my country and to my homeland and could have lived freely. Now I don’t have any hope any more.”

They spoke with him recently and assured him they are still working for his release, something that made him sound better. “We want people to know that Latif is a person. Just by looking at his face you’d see his innocence, [that he] loves nature and has a good character,” says his brother. “He is someone who wishes good upon everyone, everyone testifies to this, neighbours and family, people know him by name due to his personality his truthfulness, character, devotion, he is loved by many.”

When Shelby Sullivan-Bennis spoke before the PRB in June 2016 on behalf of Latif, she was hoping for the best. The board is similar to a parole hearing but made up of senior officials from the departments of defence, justice, homeland security, state, and representatives from the chairman of the joint chiefs of staff and director of national intelligence. “Nasir deeply regrets his actions of the past. I am very confident that Nasir has a strong desire to put this unfortunate period of his life behind him and move on,” said Sullivan-Bennis, a lawyer who then worked for Reprieve but now works independently.

Speaking from Guantanamo to officials assembled in Washington DC via secure video conferencing, she added: “Nasir will seek to reintegrate into society, marry and have a family of his own. Nasir has not made any negative comments or expressed any ill will towards the United States nor displayed any evidence of an interest in extremist activities.”

A month later, the board announced the news Latif could barely believe. There had been no objections from any of the intelligence or government agencies to him being released. He was free to go, once his home country had signed off on the deal, and the US congress had been informed of the transfer. Or so it seemed. Six months later, with the state department trying to have the authorities in Morocco sign off, the single tweet by Trump changed the Obama-era policy on releases in an instant. When lawyers for Latif and others challenged their detention, the courts appeared to indicate the decision was up to the executive branch.

On 19 January 2017, federal judge Colleen Kollar-Kotelly rejected the argument that it was beholden upon Trump’s incoming defence secretary, James Mattis, to inform congress and smooth the passage of Latif’s release. Last year, lawyers for Latif and 10 other men filed a habeas corpus petition – the most fundamental tenet of common law – demanding they be brought before a judge and told why they were still detained.

“Given Donald Trump’s proclamation against releasing any petitioners – driven by executive hubris and raw animus rather than by reason or deliberative national security concerns – these petitioners may never leave Guantanamo alive, absent judicial intervention,” the filing read. Asked by federal judge Thomas Hogan, who sits on the district court for the District of Columbia, considered second only in seniority to Supreme Court, how long the administration intended to detain the men, justice department lawyer Ronald Wiltsie said until “the end of hostilities”.

The judge raised the prospect of a prisoner captured during the Hundred Year War between England and France that spanned from 1337-1453. “Yes, your honour,” replied Wiltsie. “We could hold them for 100 years if the conflict lasts for 100 years.”

Mark Maher, another reprieve lawyer, says the men are now “being detained indefinitely without trial on the whim of the president”. He adds: “It is hard to conceive of a constitutional violation more grave.”

Shayana Kadidal, a lawyer with the New York-based centre for constitutional rights, represents Sufiyan Barhoumi, who has been held at Guantanamo for more than 17 years and cleared for release in 2010. Barhoumi was not among the 11 men who filed the habeas petition, though he has filed a similar one on his own behalf. Kadidal says the Trump administration has made clear it has no interest in releasing any more prisoners, regardless of their status, or the potential financial savings. In addition to Trump’s tweet, one indication was the decision to close the state department desk that handled transfers.

He says he met recently with Barhoumi. “He was surprisingly well,” he says. “One of the things about these guys is there relentless optimism.”

Kadidal says while many consider keeping Guantanamo open an insanity, there are considerable interests in doing so. For Trump, the interest may be political, for the military, it may be strategic, for the numerous military-appointed lawyers defending the 9/11 accused, it may be professional and financial. “The military wants to keep running a prison, so that it can have a place to send people in the future.”

Sullivan-Bennis, who represents a number of Guantanamo prisoners, says the men asked different questions of her. Bihani, 47, the Yemeni who has been held for 17 years and cleared for release in 2010, wants to know “what the government has to say about him”. She says it is hard to provide an answer; the habeas petition filed in 2017 has still not yet answered. “He reads and understands the litigation,” she says. “We don’t know the reason he is being held. He was due to be transferred to Saudi Arabia. We don’t know why he was not put on the plane.”

She says Latif is concerned about whether he should prepare to spend the rest of his life at Guantanamo. He says lessons and programmes once provided by the authorities, have been reduced. He says the library now receives no new books. The only English news channel is Russia Today. The Arabic channel is the Lebanese Al Mayadeen.

“His main concern is living a life that constitutes a life,” she says. “He feels like they are only being kept alive.” She said the prisoners had limited interest in spending time together because “what are we talking about? Something that happened in 2006? Nothing”.

She says he added: “But if you create an atmosphere of education, he will immerse himself in what he is interested in. For example, if he is interested in English, he will all the time be talking about English. If he is interested in art, he will be talking about art. The problem is that detainees have nothing to do.”

To some extent, Bihani, Latif and Barhoumi have it better than the two cleared for release. Neither Sattar or Yazidi currently have legal representation. Within the legal community that has dealt with Guantanamo, there are concerns about the mental health of all the detainees, but particularly in regard to these two, who have both been detained for more than 17 years.

The US department of justice failed to respond to multiple inquiries about the five men. Cmdr Candice Tresch, a Pentagon spokesperson says, the military provides detainees “with recreation opportunities, communal prayers, family phone calls and mail”. She says the library offered more than 30,000 items including books and movies, in more than 19 different languages. Detainees have access to satellite television and radio.

She says while she cannot comment on the health of an individual prisoner, “the medical care provided to detainees aligns with the Geneva Convention, which requires medical treatment similar to that available to US service members”. Asked why the men are still being held she says: “The decision to transfer a detainee is made only after detailed, specific conversations with the receiving country about the potential threat a detainee may pose after transfer and the measures the receiving country will take to sufficiently mitigate that threat. Once a country accepts a detainee for repatriation or resettlement, we ensure the transfer can be effectuated consistent with our post-transfer humane treatment policy.”

Latif, who for several years was held in solitary confinement, has twice gone on hunger strike to protest the conditions. In 2013, his weight fell to 124lbs (56kg). He now makes an effort to take better care of his health. The “comfort items” he most commonly requests are tahina, flax oil, figs, dried fruit, fennel seeds, walnuts, pistachios and almond butter.

In another message shared via his attorneys, he reflected on the 17-and-a-half years spent at Guantanamo. “I have learned to be more open to other cultures,” he says. “What we have is not all ideal and good. So many times, a guard will be a friend. I am sad when some leave.” He adds: “Some Americans try to [help] gain our freedom – so don’t judge a country by the policies of its government.”

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