Yemeni Detainees Pose Problem in Closing Gitmo

A guard tower at the Guantanamo detention center. (defenselink.mil)

Human rights advocates are warning that unless the United States resolves some particularly thorny problems posed by almost 100 prisoners from Yemen stuck at Guantanamo Bay, President Obama will have serious problems keeping his pledge to shut down the prison camp anytime soon. The advocates are calling on the administration to prosecute in U.S. federal courts any Yemenis who pose a real threat, and to work harder to develop a plan with the Yemeni government to let the rest of them go home. Those who face a credible threat of persecution in Yemen could be resettled in another country.

The problem, described in a new report by Human Rights Watch released Sunday, involves about 99 prisoners from Yemen, many of whom have been imprisoned without charge for more than eight years. Of some 550 prisoners released from Guantanamo by the Bush administration, only 14 were from Yemen. Except for Salim Hamdan, Osama bin Laden’s driver convicted by a U.S. military commission and sent home last November, no Guantanamo prisoners have been returned to Yemen in the past year and a half.

Illustration by: Matt Mahurin

Although detainees from Afghanistan and Saudi Arabia far outnumbered Yemeni detainees in the Guantanamo Bay prison’s early years, about 90 percent of detainees from those two countries have been sent home. Yemenis are now the largest single group at Guantanamo, making up about forty percent of the prison population.

The reason is not that the Yemeni prisoners are any more dangerous, say human rights advocates and lawyers. In fact, about a dozen prisoners from Yemen have been cleared for release since 2005. Yet the United States has been unable to reach an agreement with Yemen on how to repatriate these prisoners and ensure they don’t join Al Qaeda or otherwise pose a threat to the United States in the future.

“The reality is that release has never had anything to do with supposed dangerousness, but rather the ability of the [United States] to work out a diplomatic arrangement with another country,” said David Remes, a lawyer who represents 15 detainees from Yemen. “Almost all the western Europeans have been released,” he said. “All the English residents have gone back. But now you have the Yemenis, and the problem with reaching an agreement is complex.”

The problem is that U.S. officials don’t trust the Yemeni government — whose country has experienced a surge of violence and the growth of Al Qaeda and its supporters there — to handle the repatriated prisoners in a way that will ensure they don’t join terrorist groups upon their return. Yemeni authorities have promised to create a rehabilitation camp where former Guantanamo prisoners would receive counseling, job training and help re-integrating into the society. But as one of the poorest countries in the Middle East, it’s not clear how Yemen could afford to do that without significant foreign assistance. And while Yemen would like the United States to fund the effort, U.S. officials say they’re wary of handing large sums of money over to a government that’s notorious for corruption. They also want other Arab governments to share the costs.

In a summary of its plan provided to Human Rights Watch, the Yemeni government says that returned prisoners would be rehabilitated “religiously, culturally, vocationally and medically” in a “camp” with sports, cultural activities and family visits. Specialists would evaluate detainees and determine “the causes that have contributed to their joining terrorist groups.” The men could spend anywhere from a week to more than a year in custody.

That worries human rights advocates, however, who fear that could lead to yet more arbitrary detention for detainees – essentially, a mini-Gitmo transferred to Yemen. That’s particularly likely if the U.S. government pressures the Yemeni government not to release the men out of fears that they’ll support terrorism. As with Guantanamo, most would probably not be charged with crimes in Yemen or have an opportunity to defend themselves or challenge the legitimacy of their detention.

“Yemeni authorities should not assume these men are terrorists simply because the United States held them at Guantanamo,” said Human Rights Watch researcher Letta Tayler, who traveled to Yemen to interview former detainees and Yemeni officials. “If they feel they must monitor the detainees or restrict their movement, they have to provide the men with a meaningful legal process to contest the measures.”

The group says that any agreement between the United States and Yemen should also resolve the cases of two Yemenis being held by the United States without charge at Bagram Air Base in Afghanistan.

“The best way to prevent the returned Yemenis from becoming a threat is to help them reintegrate into their society and repair their lives,” Tayler said.

Whether Yemen will follow through on its promises to do that isn’t clear. The proposed rehabilitation has yet to be built, although Yemeni President Ali Abdullah Saleh promised it would be completed in April. Until it’s ready, Human Rights Watch worries that Yemeni detainees could be sent to rehabilitation programs in Saudia Arabia or simply sit in jails and prisons run by Yemen’s security services, as all 14 former Guantanamo prisoners returned to Yemen were initially, with no access to lawyers and minimal access to relatives. None have been given any rehabilitation or reintegration assistance, Human Rights Watch reports.

The group’s report describes one detainee returned to Yemen from Guantanamo in 2004 who says that upon his arrival in Yemen, government authorities imprisoned him and tried to beat him into confessing that he was working as an American spy.

“I was tortured for five days, from nine in the morning until dawn,” the former prisoner told Human Rights Watch. “There were insults, bad words and threats to do bad things to my female relatives and to imprison my father. I told them, ‘if you’re going to torture me, it won’t be anything new. The Americans already put me through torture.’ “

State Department officials reached last week declined to comment on the situation in Yemen or the challenges of returning prisoners there, saying they had not seen the Human Rights Watch report. But some Middle East experts say that the United States’ concerns about repatriating Yemeni detainees are well-founded.

“The Yemeni government has had a very spotty record with its high-value prisoners,” said Jonathan Schanzer, a former counterterrorism analyst for the U.S. Treasury Department and Deputy Executive Director of the Jewish Policy Center. “After 9-11, the Yemeni government did a relatively good job trying to crack down on violence in Yemen. But as the situation evolved, Yemen began to experiment with counter-indoctrination, releasing prisoners from jail on family bond”—a family’s promise that it will keep an eye on the prisoner. “So in the last three years we’ve seen a Yemeni revolving door policy with its high-value prisoners and Al Qaeda suspects,” said Schanzer. “We’ve seen a slight uptick in violence, and we can expect to see more. So I think it’s understandable that U.S. intelligence agencies would be a little skittish about handing over these suspects who were presumably picked up on the battlefield in Afghanistan and elsewhere when it’s unclear what the Yemeni policy is concerning trying and incarcerating Al Qaeda suspects.”

Whether they were actually picked up “on the battlefield” and what information U.S. authorities are willing to share with Yemeni authorities about the prisoners remains unclear, however.

Only four Yemenis have been charged by the U.S. Military Commissions, and lawyers for the other Yemenis say that there clients didn’t participate in or plan any crimes against the United States and are no more of a threat than any other detainees who’ve been released.

Andy Worthington, author of The Guantanamo Files, which tells the stories of 774 Guantanamo prisoners based on public documents and prisoners’ accounts, has described the Yemeni prisoners as “for the most part, a mixture of humanitarian aid workers and missionaries, caught up in an undiscriminating dragnet, and Taliban foot soldiers. Recruited in their home countries to help the Taliban establish a ‘pure Islamic state’ by defeating their Muslim rivals in the Northern Alliance, these foot soldiers had little, if any knowledge of al-Qaeda, and no involvement whatsoever in the 9/11 attacks or any other terrorist activities.”

Human Rights Watch researchers similarly report that the Yemenis at Guantanamo contend that “they were arrested on the barest of circumstantial evidence, or simply because of their nationality.”

Yet the Pentagon reportedly still considers the majority of Yemenis “high risk.” Although the government has claimed that many are members or supporters of Al Qaeda, the non-classified documents that have been produced to support those claims “often cite little meaningful evidence to support the allegations,” notes Human Rights Watch. Lawyers representing the prisoners say the same thing.

Hussein Almerfedi, who grew up in southern Yemen and was arrested in Iran, claims he was just trying to get to Europe to look for work, reports Human Rights Watch. Almerfedi was reportedly cleared for release earlier this year.

The report also notes that several Yemenis at Guantanamo suffer from severe depression and other psychological problems. The Pentagon claims that one Yemeni at Guantanamo committed suicide in 2006, although his family claims he died from abuse and is suing the U.S. government.

“There is no benefit in living like this anymore in this frightening prison that kills me a thousand deaths daily,” Adnan Latif, 33, who is in a Guantanamo psychiatric ward, wrote his lawyers in January 2009, according to HRW’s report. “Ask the judge that he issues an order of death sentence to execute me.”

While most of the detainees have filed habeas corpus petitions in U.S. federal court to challenge the legality of their imprisonment, those cases have only recently begun to move forward. (The U.S. government insists the detainees at Bagram have no habeas rights.) In only two cases so far has a judge determined that the evidence supported the government’s designation of the men as “enemy combatants.” But even if the court determines in most of the cases that the U.S. does not have sufficient evidence to continue holding them, the court recently ruled that that it also does not have the power to order the prisoners’ release or return. That remains up to the Obama administration.

“This underscores one of the problems of closing Guantanamo Bay,” said Schanzer. “How does the administration explain it when people are handed over to Yemen and Yemen doesn’t incarcerate or keep them behind bars, when they engage in terrorist activity? Will it be seen as a blunder on the part of the administration for allowing these people to walk free in the name of cleaning up America’s image abroad?”

Indeed, former Republican officials see the Yemeni problem as just one example of why Obama should change his mind about closing Guantanamo Bay. In a recent discussion in the Washington Post, former justice department lawyers David Rivkin and Lee Casey argue that Guantanamo is “almost the perfect place to hold al-Qaeda and Taliban captives’ because it is “a secure facility, located far from the active battlefields, away from civilian populations likely to be al-Qaeda targets, and does not present ‘host country’ diplomatic issues.”

Lawyers who have actually met and represented some of the Yemeni men indefinitely detained there disagree. Not only does imprisoning men with no opportunity to defend themselves breed more resentment and terrorism in the Muslim world, but the conditions of confinement at Guantanamo continue to violate international law, advocates such as the Center for Constitutional Rights, which represents detainees from Yemen and released a report on the conditions at Guantanamo in February have said. Human Rights Watch insists that the 99 Yemenis should not thwart Obama’s plans to close down the Guantanamo prison camp, but instead should prompt more aggressive efforts to arrange for their repatriation, rehabilitation, and compensation for abuses they’ve suffered at the hands of U.S. authorities.

Others think the prisoners shouldn’t have to wait for those conditions to be met. “There are tens of thousands of militant jihadists throughout the Islamic world,” said David Remes, executive director of Appeal for Justice and lawyer for 15 Yemeni prisoners. “And 94 Yemenis are holding up the resolution of the Gitmo problem? That to me is absurd. If the U.S. is going to wait for Yemen to stabilize or for [President] Saleh to provide meaningful assurances of monitoring them and putting them through a meaningful re-education program, the Yemeni’s will remain in U.S. custody forever.”