The Man Who Almost Escaped Guantanamo Bay

CASABLANCA, Morocco — Mustafa Nasser was driving through the crowded streets of Casablanca when his phone rang. Christopher Chang, a human rights investigator, was calling with good news: The U.S. government had just recommended the release of Mustafa’s younger brother Abdul Latif. It was July 2016, and after more than 14 years of imprisonment without charge in the U.S. military base on Guantanamo Bay, Cuba, Abdul Latif was coming home.

Mustafa choked back tears as he thanked Chang for relaying the good news. He started planning for his brother’s homecoming. The family would clear out a newly renovated room in the house where Abdul Latif grew up. They would give it a fresh coat of white paint just before his arrival, to signify a fresh start. Mustafa would train his brother to be a water treatment engineer at his company. And his sister Khadija had started the search for a bride for Abdul Latif.

But two years later, Abdul Latif Nasser still hasn’t come home.

After Donald Trump won the 2016 presidential election, officials in the Obama administration raced to get cleared prisoners out of Guantanamo before Inauguration Day. Trump had vowed to keep the prison open, and they knew the chances of detainees getting released under the incoming administration were slim.

They managed to transfer  19 men out of the prison during the transition. But due to a series of bureaucratic delays and interagency disagreements, they left behind Nasser and four other men who had been cleared for release. One of the men was even measured for civilian clothing and photographed for out-processing — but when the plane arrived, he wasn’t allowed aboard.

Now Nasser, 53, is back where he started in 2002: facing indefinite detention in Guantanamo Bay without charge.

Growing up, Nasser wanted to become a math teacher, maybe in Australia; he was attracted to a place that would be different than the one where he grew up. He studied math and science in college, but followed his oldest brother, Abdul Wahid, to Libya before finishing his degree. Then, he disappeared.

Nasser’s sister Khadija was the first to receive the news. After years of silence, she received a letter from Nasser in Guantanamo, delivered by the International Committee of the Red Cross. He told his family not to worry and asked for pictures. He didn’t say where he had been or whom he had been traveling with.

According to the Pentagon, Nasser had traveled to Sudan in 1993 “in search of the perfect Islamic society” and started working at a company owned by Osama bin Laden as a supervisor for a charcoal production unit. After a failed attempt to travel to Chechnya to “conduct extremist operations,” the Pentagon alleged in a leaked detainee assessment , Nasser followed bin Laden to Afghanistan.

It’s nearly impossible for journalists to verify whether the Pentagon’s allegations are true. Several of the military’s assessments of Guantanamo detainees have turned out to contain incorrect or unverified information .

“Over the years, a lot of the purported evidence in [Nasser’s] case has been discredited by court findings of [the] unreliability of several key witnesses in his case and others,’” Shelby Sullivan-Bennis, one of Nasser’s lawyers, told HuffPost. But it’s hard for Nasser’s team to rebut some of the allegations against him because the government has maintained a “monopolistic chokehold on which evidence gets declassified and which does not,” she added.

Fighters with the Northern Alliance, a U.S.-aligned group in Afghanistan that opposed the Taliban, captured Nasser shortly after the Sept. 11 attacks and handed him over to the U.S., according to the Pentagon. Nasser’s lawyers say he was sold to the Americans for a bounty. The U.S. military held Nasser in Kandahar, Afghanistan, for about three months before transferring him to Guantanamo on May 3, 2002.

Nasser and his family spent the next decade and a half working through the arduous processes that the U.S. government upheld as his only path to freedom. He filed a habeas corpus petition — a legal challenge of his imprisonment — in 2005 in the U.S. District Court for the District of Columbia and denied being a member of al Qaeda or any other terrorist group. The judge in that case has not yet ruled on whether his imprisonment is lawful.

In 2011, after Nasser had been in Guantanamo for nine years, the Obama administration created the Periodic Review Board , parole-style hearings designed to evaluate which detainees should be released and which should remain held without charge. The process, which was supposed to make it easier for the government to release prisoners who didn’t pose a threat, is nothing like a hearing in a real court. PRB officials don’t have to prove that detainees did anything wrong in order to recommend continued detention. The departments of Defense, Homeland Security, Justice and State, the Joint Staff and the Office of the Director of National Intelligence all have representatives on the board, and each representative has the power to veto the board’s recommendation. But despite the PRB’s limitations, many detainees considered winning its support for their release as tantamount to imminent freedom — especially toward the end of the Obama administration.

The PRB system moves slowly — the hearings didn’t even start until 2013 — and Guantanamo detainees only hear they’ve been scheduled to appear before the board shortly before their hearing. Nasser’s legal team wanted to be ready. So in the spring of 2016, Chang, who was working with Nasser’s lawyers, flew to Casablanca and recorded video interviews with 10 of Nasser’s brothers, sisters, in-laws and nephews in the home where Nasser grew up.

Chang wanted to show U.S. officials a glimpse of the stable life awaiting Nasser back home. Unlike a lot of the men at Guantanamo, Nasser had a place to live, a job and a caring family waiting for him. He wasn’t likely to become a terrorist.

“He was raised with my children; I consider him one of my children. We miss him so much, and we ask God to accelerate his freedom soon, so that he comes back to us and live with us,” Nasser’s sister-in-law Naima said into the camera, seated in front of a colorful tiled wall in the living room. “Our house is his house, and we are ready to offer him every needed support financially and morally, and all the requirements for a dignified life.”

“I am ready to train Abdul Latif Nasser to work,” Mustafa said. “He is my youngest brother and I love him very much.”

“All of us are ready and prepared to offer him the most precious things we have,” Nasser’s sister Milouda said.

Nasser finally appeared before the PRB  on June 7, 2016 — 14 years, one month and four days after he arrived at Guantanamo.

Then he waited.

About a month later, Nasser was led into a room to hear the board’s decision. Sullivan-Bennis dialed in from London. The board recommended sending Nasser home to Morocco once U.S. officials got security assurances from the Moroccan government — including details of how the Moroccans planned to monitor Nasser once he returned home.

Nasser was elated. “I am so excited to see my family,” he told Sullivan-Bennis when they spoke by phone. “I can see my brother’s face now. You will have to come to Morocco, like I told you, and have your honeymoon in Casablanca.” 

Nasser thanked Sullivan-Bennis repeatedly. “My lawyers were the light in these dark times,” he said.

By September, Sullivan-Bennis was calling her contacts at the State Department multiple times a week to check on Nasser’s case. One official told her not to worry. Nasser was “absolutely going home,” the official said, according to Sullivan-Bennis.

Finalizing security details should have been relatively easy — Morocco is a close U.S. ally and had already taken in more than a dozen former Guantanamo detainees. But the process dragged on. After Trump won, State Department officials told their counterparts in Morocco it was important they wrap up Nasser’s case before the president-elect entered office. But as Trump’s inauguration date drew closer, State Department officials still hadn’t heard back from the Moroccan government. A spokesman for the Moroccan government did not respond to multiple requests for comment about the reason for the delay.

Nasser tried to temper his expectations. He started telling Sullivan-Bennis that he was trying not to envision his life back home just yet. He didn’t want to be let down.

Congress requires the defense secretary to notify lawmakers at least 30 days before sending any detainees out of Guantanamo. That meant that if Congress wasn’t notified by Dec. 21, it would be much harder to get Nasser out before Trump’s inauguration in January.

Nasser and Sullivan-Bennis spoke by phone days before that deadline. “My body is in Guantanamo, but my heart and mind are in Morocco,” Nasser told his lawyer. Time was running out and they were both anxious for answers.

On Christmas Eve, Sullivan-Bennis was meeting some old friends at an Applebee’s in Rhode Island when she saw an incoming call from Thomas Durkin, another lawyer on Nasser’s case. Durkin had heard through informal channels that Defense Secretary Ash Carter had failed to notify lawmakers about Nasser’s release. There was no way to get out of Guantanamo through regular channels before Trump became president.

“I remember taking the phone call outside the restaurant in the freezing cold, sinking into the cement floor thinking, ‘What is happening?’” Sullivan-Bennis said.

Nasser’s counsel teamed up with lawyers at the Center for Constitutional Rights who were representing another cleared detainee. They worked through Christmas, and in January they filed an emergency motion in the U.S. District Court of the District of Columbia, urging a federal judge to allow the release of the two prisoners. Their transfers had been delayed due to bureaucratic obstacles unrelated to the facts of their cases, their lawyers argued in the court filing. “If Petitioners are not transferred within the next week by the outgoing administration, they will likely not be transferred from Guantanamo for at least the next four years,” it said.

The motion exposed the Obama administration’s competing priorities. Obama had campaigned on closing Guantanamo and was committed to getting as many men out of the prison as possible before leaving office. But as long as the prison remained open, he was committed to defending the legality of keeping suspected terrorists detained there. Nasser’s case forced the administration to choose which policy to prioritize.

Some State Department and National Security Council officials tried to convince their counterparts at the Justice Department not to fight the emergency motion. But DOJ, which rarely backs down from cases in which its lawyers believe they have a viable legal argument, pushed through.

DOJ lawyers argued that the PRB determination is only a recommendation, not a legally binding final decision. The Moroccan government didn’t agree to the United States’ security conditions until Dec. 28, DOJ wrote in a court filing. At that point, Carter opted to leave the decision to his successor because the Moroccans’ response came less than 30 days before the end of his term.

As the court considered the motion, a handful of NSC staffers worked through Martin Luther King Jr. Day weekend drafting a memorandum they hoped to deliver to Obama, explaining the urgency of the case. The memo never reached the president.

On Jan. 19, 2017, the day before Trump’s inauguration, a federal judge ruled against Nasser .

The Obama administration had won. It had successfully defended the legality of continuing to imprison a man it had fought for months to release.

The absurdity of the situation wasn’t lost on the lawyers who worked on the emergency motion.

“Why did the Obama administration continue to fight for the right to detain two individuals that it had determined no longer needed to be detained? Why did they fight that all the way up until the day before the inauguration?” asked J. Wells Dixon, a senior staff attorney at the Center for Constitutional Rights.

“It doesn’t make sense, but it is symptomatic of the Obama administration’s effort to close Guantanamo,” Dixon continued. “The president said all of the right things … but his administration — and he, himself, as commander in chief — were unwilling to take the necessary steps to achieve closure. And in fact, when it came to [the emergency motion], they took steps that were contrary to the stated desire to close the prison.”

A spokesman for Obama declined to comment on whether the former president regrets not intervening on Nasser’s behalf.

Nasser’s siblings worried how he would cope with the disappointment. His spirits had plummeted. “It was worse than when he was arrested. He was depressed; he was hopeless,” Mustafa recalled earlier this year, seated among about a dozen relatives who had once again gathered in the family home to make the case for Nasser’s release.

When Sullivan-Bennis tried to call Nasser at the end of January, he declined to talk. It was the first time he had rejected a call or a visit from her, she said.

Nasser apologized profusely the next time he and Sullivan-Bennis spoke. He didn’t blame her, he said, he just wasn’t ready to talk about it when she had called. She apologized too. She faulted herself for letting him get his hopes up, for taking her government at its word.

After Trump’s election, Sullivan-Bennis’ contacts at the State Department assured her they would still be around to provide updates about her clients. Officials who worked on Guantanamo issues met with Trump’s transition team and tried to convince them not to gut the team. Even if Trump had no plans to close the prison or release any more detainees, he needed Guantanamo experts to keep track of the detainees who had already been transferred out, they argued.

But the State Department disbanded the office that handled detainee issues soon after Trump took over. Ian Moss, a staffer who had helped negotiate the transfer of dozens of men out of Guantanamo, was reassigned to responding to Freedom of Information Act requests. (He has since been moved to the State Department office that deals with war crimes.)

Nasser has tried to pass the time at Guantanamo by doing things that could help him restart his life if he ever gets out. He has taught himself English and created a 2,000-word English-to-Arabic dictionary. He sometimes writes notes to Sullivan-Bennis.

He is hesitant to ask his lawyer for favors, but he sometimes asks her to bring him books. He usually requests books about family dynamics, titles such as The Seven Principles for Making Marriage Work: A Practical Guide From the Country’s Foremost Relationship Expert, How to Talk So Kids Will Listen & Listen So Kids Will Talk, and The Glass Castle: A Memoir. He is trying to learn how to be a good husband and a good father for when he returns home, he has told Sullivan-Bennis.

But there’s no indication the Trump administration is working to send Nasser — or any of the cleared Guantanamo detainees — home. Nowadays, when Sullivan-Bennis calls the people she used to work with at the State Department, no one picks up the phone. When she emails, she gets a bounce-back message:

I have been directed to cease working on Guantanamo detention-related matters. The office of Guantanamo Closure is no longer staffed, so please direct any Guantanamo detention-related inquiries to the appropriate regional bureau.

Since Trump took office, the PRB process that failed Nasser has slowed to nearly a halt. Only 11 prisoners have received hearings — and none of those hearings has resulted in a recommendation for release. One man has been waiting for more than a year to get the results of his PRB hearing. The only prisoner to leave Guantanamo under Trump so far is Ahmed al-Darbi, who struck a plea deal years ago  that required him to be transferred to a prison in Saudi Arabia on Feb. 20 of this year. The Trump administration didn’t send him back until May .

In January, on the 16th anniversary of the opening of the Guantanamo prison, Nasser and 10 other detainees filed a new legal challenge against the Trump administration . Trump “has explicitly endorsed indefinite detention,” the prisoners’ lawyers wrote in a legal filing, citing Trump’s past statements.

Justice Department lawyer Ronald Wiltsie admitted in a hearing on July 11 that the government had made no effort toward transferring the cleared prisoners. The government could hold Nasser and the other men at Guantanamo for 100 years if it wanted to, as long as the U.S. remains at war with terrorist groups like al Qaeda or any of its affiliates, Wiltsie claimed in court.

Cleared detainees like Nasser are stuck in a “no man’s land” where they are not subject to any type of review process but are also not any closer to freedom, Thomas Hogan, the federal judge handling some of the detainees’ cases, said during the hearing.

Nasser’s relatives still talk about the big party they’re going to throw when he finally comes home. They’ll cook tajine and couscous, some of his favorite dishes.

Each month, they make the hourlong drive from Casablanca to the International Committee of the Red Cross office in Rabat. From there, they are allowed one two-hour video call with Nasser per month. They have to follow certain ground rules: They can’t take pictures of Nasser and they can’t ask him how he is being treated at Guantanamo. They don’t like the rules, but it’s better than not hearing from him at all. Because they can’t ask him much about how he’s doing, they mostly give him updates about how they’re doing — since Nasser got to Guantanamo, his brother Mustafa has had four children and two of his nephews have gotten married. During the calls, he always tells his family not to worry about him.

But Nasser is worried about himself, he’s admitted to Sullivan-Bennis. He was diagnosed with high blood pressure years ago, which doctors at Guantanamo treated with blood thinners, Sullivan-Bennis said. He was concerned about whether he was receiving the right treatment but didn’t protest since he thought he’d be going home soon. Back in Casablanca, he could see another doctor, get himself on a healthier diet and exercise more, he thought.

After realizing his release was no longer imminent, Nasser started to work on his health in Guantanamo.

He started exercising regularly and requesting catfish, one of the healthier meal options at the prison, for every meal. A Guantanamo spokeswoman provided a sample menu to HuffPost and said the prison accommodates dietary requests. But Nasser told his lawyer that, for months, even the catfish was served fried. So three times a day, he peeled off the batter and left it on the side of his plate. 

He doesn’t want to die at Guantanamo Bay.

Iman El Haddad, a journalist based in Morocco, provided interpretation.