Today, prosecutors in the Office of Military Commissions announced they intend to ask the convening authority to refer new charges under the recently-enacted Military Commissions Act of 2009 against Ahmed Mohammed Ahmed Haza al Darbi, in connection with his alleged involvement in an al Qaeda conspiracy to attack military and commercial shipping in the Port of Aden and the Straits of Hormuz.

This announcement follows the attorney general’s determination on Nov. 13, 2009, that a military commission was the appropriate forum for prosecution of al Darbi.

al-Darbi has apparently not actually committed an act of terrorism, but if prosecutors are correct about his attendance at an al-Qaeda training camp, they have more than enough to convict him for conspiracy. So why try him in a military commission and not a civilian court? Even if the Obama administration has a compelling answer, don’t look for an answer today, as it’s right before Thanksgiving, an ideal time to drop a controversial decision without explaining it.

A task force set up when Obama took office is reviewing each case, and the administration has started posting the names of those cleared for release at the prison camp, according to a spokesman for the Guantanamo prison.

Although President Obama when he took office set a Jan. 22 deadline for shutting down the prison, Defense Secretary Robert Gates acknowledged to ABC News on Sunday that “it’s going to be tough” to meet the deadline. Recent news reports have suggested that the deadline may be impossible to meet.

Despite the list of 78 prisoners deemed free to go (the list included three already released), many of them, such as the prisoners originally from Yemen, have been “cleared” for months or even years, but have not yet been returned home, despite eight years in captivity without charge. The Obama administration has been reluctant to return prisoners to Yemen because it does not trust the Yemeni government’s ability to prevent them from joining al-Qaeda-sponsored terrorist groups.

Reuters reports that the prisoners on the latest list include, in addition to the Yemenis, the 13 Uighurs still imprisoned (Palau has agreed to accept 12 of them), plus “nine detainees from Tunisia, seven from Algeria, four from Syria, three each from Libya and Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan.”

On Monday, the Obama administration said it plans to appeal the judge’s ruling.

Back in August, I noted that because Mohammed al-Adahi is from Yemen, whose government the Obama administration doesn’t trust to control terrorists, it would be reluctant to send him home. And because the United States refuses to accept any prisoners here and other countries are reluctant to take them, al-Adahi could end up stuck at Gitmo for months more.

But the government’s filing today suggests that the Pentagon believes al-Adahi does not deserve to be released — or at least that it can’t come up with a politically palatable place to send him.

Al-Adahi, as I explained when he won the order of release, was captured by Pakistani troops while fleeing Afghanistan on a bus that also carried wounded Taliban soldiers. In addition, he had spent a week at an Islamic training camp, from which he was expelled, and had once met Osama bin Laden at a wedding celebration for al-Adahi’s sister in Kandahar. To the Defense Department, this was sufficient grounds to hold al-Adahi as a Taliban fighter and send him to Guantanamo.

In the declassified version of her opinion granting his petition for habeas corpus, D.C. District Court Judge Gladys Kessler wrote: “Unable to prove the more serious allegation of actual participation in combat, the Government cannot rely solely on what is only associational evidence about Al-Adahi’s stay and arrest in the company of individuals rumored to be part of the Taliban. Such evidence is not sufficient to carry the Government’s burden.”

The government apparently disagrees, and indicated in a new court filing today that it will appeal that decision.

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

On Monday a federal court judge ordered the Department of Defense to release a 47-year-old father of two with a heart condition who it has imprisoned at Guantanamo Bay for the past seven years without justification. But like the other Yemeni men cleared for release but still held at the detention facility, it’s not clear when or even if Mohammed al-Adahi will get to go free.

Illustration by: Matt Mahurin

Obama administration officials on Wednesday boasted that they’d secured agreements from six European countries to accept Guantanamo detainees, although the United States itself has still refused to free any Guantanamo prisoners on U.S. soil. But since President Obama’s inauguration in January, the administration has not released a single prisoner to Yemen, although that country is willing to have them back and many would be happy to go there. (Some prisoners from other countries, such as the Uighurs from China, cannot be returned to their home countries for fear of persecution.) The administration has not stated its reasons, but said only that the State Department is negotiating with the Yemeni government over the prisoners’ return. At least three Yemeni prisoners since April have won their petitions for habeas corpus in federal court — meaning a judge has ordered that the government must let them go. (The government has cleared for release an unknown number of others.) So far, though, the Obama administration has not complied with those court rulings.

The United States has long been reluctant to return Guantanamo detainees to Yemen, where al-Qaeda is believed to be active. As a result, of about 550 prisoners released from Guantanamo by Bush officials, only 14 were from Yemen. But that trickle has slowed to a complete halt under the Obama administration, despite court rulings that the government hasn’t shown the men have done anything wrong or present any security risk.

Nearly 100 of the remaining 223 detainees at Guantanamo Bay are from Yemen. A government official on Wednesday said that negotiations are ongoing. Now that two U.S. federal courts have ordered at least three Yemeni prisoners freed, however, it’s not clear under what power the United States can continue to hold them.

“We appreciate that the United States has security concerns about Yemen, but continuing to hold these men without charge is morally wrong, is in violation of court orders, and it’s handing al-Qaeda a recruiting tool,” said Letta Taylor, a researcher for Human Rights Watch who wrote a report on the Yemeni detainees’ situation in March. “It creates its own sets of risks.”

The standoff between the court and the president in the Yemeni prisoner cases is another example of the executive branch ignoring the orders of the federal judiciary. In previous court cases, the government has refused to turn over evidence that it deemed a “state secret,” for example, even after a federal judge ordered the evidence be disclosed.

“The way our system is supposed to work is that if a federal district court orders that a branch of the government do something, they’re supposed to do it,” said John Chandler, a lawyer in Atlanta who represents al-Adahi in his court case and won his order of release on Monday. “I have every hope that they will. But they haven’t done anything yet. And he’s not the first one to be ordered released.”

In April, Judge Ellen Huvelle granted the habeas corpus petition of Yasin Muhammed Basardah, a Yemeni who was known to have provided information — often found to be unreliable — against other Guantanamo detainees. As a result, he faces security risks wherever he’s released.

And in May, Judge Gladys Kessler ordered the release of Alla Ali Bin Ali Ahmed, a Yemeni man arrested seven years ago as a teenager. The Pentagon claimed he was a terrorist based largely on statements from other Guantanamo prisoners whose testimony the judge deemed unreliable, as well as bits and pieces of other circumstantial evidence that Judge Kessler found were too “weak and attenuated” to support his continued detention.
Despite the federal court orders to release them, both men are still at Guantanamo Bay. And many more Yemenis have been cleared for release by the U.S. government, although in a strange twist, the government refuses to say how many and their lawyers are forbidden from divulging this information to the media. Among them is a 38-year-old orthopedic surgeon captured in Afghanistan in January 2002, who the Justice Department announced in March that it had cleared for release. Two more Yemeni prisoners at Guantanamo apparently committed suicide, according to the government.

“The government is designating the very fact of approval for transfer ‘protected’ information, meaning it can’t be disclosed to anyone who has not committed to obeying the protective order – which in turn prohibits the disclosure of ‘protected’ information,” explained David Remes, Executive Director of the nonprofit group Appeal for Justice, and a lawyer representing more than a dozen detainees from Yemen. “All of us are fighting that ["protected"] designation in our cases.”

Al-Adahi, who won his order of release on Monday, was captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. Because he was on a bus that also carried some wounded Taliban soldiers, the Defense Department claimed he was working for the Taliban and sent him to Camp X-Ray at Guantanamo Bay in January 2002.

An oil worker who lived in Yemen, Al-Adahi was originally suspected of acting as Osama bin Laden’s bodyguard, but he has consistently maintained his innocence. In June, he testified to a closed federal courtroom via video camera from Guantanamo, where he was chained to the prison floor and sweating in the Caribbean heat. Al-Adahi talked about his high blood pressure, and Guantanamo officials have confirmed he has heart problems.

According to declassified portions of the transcript, Al-Adahi testified that he was introduced to Osama bin Laden during the summer before the September 11, 2001 terrorist attacks while he was in Afghanistan, where he was bringing his sister, who the family had arranged to marry a Yemeni man in Kandahar. Bin Laden, then considered the de facto “governor” of Kandahar, was at the wedding celebration. Al-Adahi has consistently maintained that he never worked for bin Laden, and Judge Kessler apparently believed there was insufficient evidence to support the government’s claims. Her written opinion in the case has not yet been declassified, however, so the basis for her findings remain unclear.

“I did not fight the American alliance,” Al-Adahi testified. “I did not deal with Taliban or al-Qaeda. I am a working man in my country. I have never committed a crime.”
The Department of Justice referred questions about the repatriation of Yemeni detainees to the State Department. A State Department spokesman said he cannot comment on the situation of Yemenis who have brought their cases to federal court.

Of the 35 habeas corpus cases heard so far, federal courts have granted the petitions and ordered the release of 29 Guantanamo Bay detainees, finding the government has not produced enough evidence to keep holding them. In addition to the three Yemeni prisoners whose petitions have been granted, the petitions of three others from Yemen have been denied.

Update: Judge Kessler released this unclassified, redacted version of her opinion in the al-Adahi case late on Friday. In the opinion, she says there is no reliable evidence that al-Adahi was ever a member of or fought for al-Qaida or the Taliban, or provided either group any affirmative support.

“I think it’s encouraging that they’re moving ahead despite the opposition,” said David Remes, Executive Director of Appeal for Justice, who represents more than a dozen detainees from Yemen imprisoned at Guantanamo.  Opponents “have unfortunately resurrected the idea that the guys down there are ‘the worst of the worst,’ and so dangerous that one has to consider whether even maximum-security facilities are able to hold them.”

Moving the prisoners will at least make visiting them easier. “We won’t have to take a commercial flight to Fort Lauderdale and then a puddle-jumper to Guantanamo, or submit to the restrictions of a military base,” he said. Federal officials can still place strict limitations on lawyers representing terror suspects in the United States, though, including preventing them from talking to the media about the evidence in their cases.

“On the other hand, what appears to be happening is that Obama’s efforts to release the men who ought to be released is being stymied by political opposition,” Remes said. “And it will be deeply unfortunate if he ends up moving Gitmo from Cuba to Michigan.” Many of the men should be released, Remes insisted. “And by eliminating the symbol of Guantanamo, there’s a danger that the focus on the plight of these men will disappear.”

Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo, shares that concern.

“We have not asked for Guantanamo to be closed so that the men could be moved to different prisons,” she said. “Some of these men, including my two clients, have been held for more than seven years without charges. It is time to either charge the men or release them … moving them to a different location does not solve the problem.”

“I don’t know that there’s a viable ‘Plan B,’” an anonymous U.S. official told The Times.

As I reported in March, the difficulty of returning the 97 Yemeni detainees — about a dozen of whom have been cleared for release for years — is posing a major problem for the Obama administration, which has committed to closing the prison camp by the end of the year.

Many of the Yemenis have been imprisoned without charge for more than eight years, largely because the United States does not trust the Yemeni government to supervise or rehabilitate them upon their return to ensure that they don’t join al-Qaeda or other terrorist groups.

Of about 550 prisoners released from Guantanamo by the Bush administration, only 14 were from Yemen.

Despite ongoing attempts at diplomacy by the Obama administration, The Times’ story suggests that situation hasn’t improved at all in recent months and is now at a standstill.

“If anything, the situation has gotten worse,” said David Remes, attorney for more than a dozen Yemeni detainees at Guantanamo, noting that the security situation in Yemen has continued to deteriorate.

“In dozens of interviews over several years at the U.S. military prison — where he was rewarded with his own cell, McDonald’s apple pies, chewing tobacco, a truck magazine and other “comfort items” — Yasim Muhammed Basardah provided the evidence needed to continue detaining scores of alleged terrorists, military and FBI records show,” The Post’s Del Quentin Wilbur wrote in February.

But “military officials have expressed reservations about the credibility of their star witness since 2004,” the article continued. Those worries intensified when in January, a federal judge ordered another prisoner freed, saying Basardah’s testimony was not sufficiently reliable to justify the man’s confinement. On Monday, U.S. District Judge Ellen Segal Huvelle, based on secret evidence presented in closed-door hearings, granted the habeas corpus petition of the 33-year-old Basardah.

According to The Post story, during a military hearing, Basardah said: “I am cooperative to the point where my cooperation with everyone has led many people threatening my life … therefore I cannot go back to my own country … They will not hesitate to kill me or anyone in my family.”

Because of that, and perhaps also because Basardah is from Yemen — to which, as I wrote on Monday, the government is having serious trouble returning prisoners — it’s not clear when Basardah will actually get to leave the Guantanamo prison, despite yesterday’s court order.

But some lawyers for detainees on Monday were predicting that Basardah’s release could spark widespread anger among the detainees who have not been cleared to go — some because of testimony provided by Basardah against them.

“The men will be outraged when they learn that Basardah has been ordered released,” David Remes, the executive director of Appeal for Justice who is representing 15 Yemeni detainees at Guantanamo, told me yesterday just after learning about the order.

“First, the government released Salim Hamdan, who was convicted of aiding terrorism,” explained Remes in a follow-up e-mail. “Then, it released Binyam Mohammed, who was charged with terrorism-related crimes. Then, it orders the release of [Ayman Saeed] Batarfi, who was accused of heading an organization on the State Department’s list of terrorist groups. And now, they order the release of Basardah, who is reputed to have falsely implicated scores of men.”

Remes worries that the order to release Basardah — even if he doesn’t actually get to leave just yet — could cause more dissension and unrest among the remaining prisoners.

“It was Hamdan’s release in November that sparked the current wave of hunger strikes,” said Remes. “With the new order to release Basardah, the number of prisoners on hunger strikes will likely explode.”

–

TWI is on Twitter. Please follow us here.

Not surprisingly, the administration won’t say just where Ayman Saeed Batarfi will go.

That may be because, as I reported here, the United States is struggling to find a way to deal with almost 100 Yemeni detainees held at Guantanamo Bay and with nowhere to go — even if they’ve already been cleared for release.

The U.S. government apparently doesn’t trust the assurances it’s received from the president of Yemen that he will “rehabilitate” Guantanamo returnees at a “camp” he’ll design, but which hasn’t actually been built yet. Worries that some of those former prisoners might join up with al-Qaeda upon their return to Yemen, has stymied plans for their release. The terrorist organization is a growing presence in Yemen.

So exactly when Dr. Batarfi will really get out of Gitmo, or where he’ll get to go, remains unclear.

“The United States will initiate the appropriate diplomatic process, consistent with the national security and foreign policy interests of the United States, to facilitate (Batarfi’s) prompt transfer from Guantanamo Bay to an appropriate destination country,” the Justice Department said in a court filing Monday.

The Bush administration had accused Batarfi of being the chief medical adviser for a group linked to al-Qaeda, and early on claimed he took part in an anthrax program. It’s since dropped those claims. Batarfi, meanwhile, has said that he went to Afghanistan on a humanitarian mission.

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.”

The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.

If Obama’s executive order had been to let all the Guantanamo detainees go free, then this point would probably stand. But that’s not at all what the order says.

It directs a screening process to determine which detainees ought to be released; which ought to be repatriated to their home countries’ legal systems; which ought to be sent to a third-party country’s legal system; and which ought to be prosecuted by the United States. Admittedly, no screening process can eliminate with 100 percent certainty the possibility that a dangerous man will be released. But there’s recidivism in the U.S. prison system as well, and no one considers that an argument for indefinite detention.

The Times piece notes that Republican House members intend to demagogue the issue, continuing to describe the detainees as the worst-of-the-worst, which is not and has never been true. (The real worst-of-the-worst were detained in secret prisons run by the CIA or foreign intelligence partners.) National Journal in 2006 ran perhaps the most comprehensive study of the Guantanamo population and concluded that “Much of the evidence against the detainees is weak.”

No one should expect a demagogue to be swayed by the facts. But the truth of the matter is that just as not all of the Guantanamo detainees are guilty, not all of them are innocent, either, and so a process to cull one from the other is the appropriate way to proceed. What isn’t ever appropriate, as the Supreme Court has repeatedly ruled, is to hold them indefinitely and without due process, and the presence of a former detainee in a terrorist group doesn’t change that.