Summary

People are losing hope day by day. We've been promised release so many times, but it hasn't happened.

-Said Hatim of Yemen, who has been imprisoned at Guantanamo since 2002 [1]

The United States and Yemen are stalled on the fate of an estimated 99 Yemenis locked inside the US military prison at Guantanamo Bay, Cuba, some of whom are in their eighth year of detention without charge. Hundreds of prisoners have been sent home from Guantanamo in recent years, but only 14 of them were from Yemen. Now the largest single group among the 241 prisoners remaining at Guantanamo, the Yemenis represent one of the main challenges to President Barack Obama's pledge to close the controversial outpost by January 2010.

For more than a year, both Yemeni and US authorities have said they want many of the Yemeni detainees to return home as soon as possible. Yet by the end of the Bush presidency in January 2009, the two countries had only agreed on the most rudimentary elements of a repatriation agreement: what one US diplomat called "not even a shell." Even detainees who have long been cleared for return to Yemen remain in US custody.

The United States does not intend to repatriate those Yemenis it plans to prosecute. Thus terror suspects such as Ramzi bin al-Shibh-charged before the US military commissions with conspiring in the September 11 attacks-will not be leaving US custody anytime soon. In addition, both countries want Yemenis suspected of violating Yemeni law to be prosecuted upon return. US fears about the Yemenis in US custody, however, extend even to those whom it has no grounds to prosecute. Having held them for years as "enemy combatants," US officials are now worried that the men will "return to the fight."

As the diplomatic impasse continues, many Yemenis at Guantanamo have joined a hunger strike to protest their continuing detention without charge.

Unless the two countries agree on a repatriation plan that ensures the detainees' rights, the men's prospects are bleak. For now they endure continuing arbitrary detention at Guantanamo, and upon return they face the possibility of further abuses. There is even talk of sending some of them to Saudi Arabia. Two Yemeni detainees whom US authorities have held for years without charge at Bagram Air Base in Afghanistan are in similar straits.

In their public comments, the United States and Yemen agree that repatriated detainees should receive counseling, job training, and rehabilitation. But negotiators seem to have made little progress resolving who should fund such programs and, of particular concern to US officials, how to ensure that former prisoners stay away from armed militancy.

The problem, from the US perspective, is the environment to which the men will return more than it is the men themselves. Yemeni prisoners have languished at Guantanamo and Bagram longer than other nationalities not because they are, as a group, deemed to be more of a threat, but rather because the United States views their country with serious concern. An impoverished, politically volatile nation on the Arabian Peninsula, Yemen has seen a dramatic surge in armed violence in the past few years. Al Qaeda and its followers have been linked to numerous recent attacks there, including a double-suicide bombing outside the US Embassy in Sanaa that killed 18 people in September 2008. More directly, at least two Saudis released from Guantanamo in 2007 have slipped into Yemen to join al Qaeda.

In interviews with Human Rights Watch in December 2008, US and Yemeni officials spoke of their security concerns, their bilateral negotiations, and their views on how to handle repatriated prisoners. Senior Yemeni officials described their proposed detainee rehabilitation center, and later provided Human Rights Watch with a brief written summary of the plan (see the appendix).

While Human Rights Watch recognizes that the United States has legitimate questions regarding security, there is reason for concern about the direction of US-Yemeni negotiations. Without proper safeguards, Yemen's proposed rehabilitation center could become a proxy Guantanamo, indefinitely detaining suspects on the unproven chance they may cause harm in the future. As a US Embassy official told Human Rights Watch, the United States would like Yemen to place repatriated detainees in "basically a prison facility with a programmatic aspect," provided Yemen finds a legal framework to do so.

The Yemeni authorities have sought to minimize the detention aspect, saying that the proposed rehabilitation center would be similar to a "camp." Their written summary states that participants would be rehabilitated "religiously, culturally, vocationally and medically" in a setting complete with sports, cultural activities, and family visits. The government would hire specialists to evaluate each detainee and analyze "the causes that have contributed to their joining terrorist groups."

The summary gives no indication, however, of how long authorities would hold repatriated detainees, or of what criteria and procedures they would use to determine whether the returnees are ready for release. Yemeni officials told Human Rights Watch that the repatriated men could spend anywhere from a week to a year or more in custody upon their return. Human Rights Watch is particularly concerned that under US pressure, that period could be extended further.

Equally troubling, the summary's language makes a sweeping assumption that all the detainees were militants, although none who would be sent home has yet been charged with or convicted of any offense. Although the Bush administration repeatedly stigmatized the detainees at Guantanamo as terrorists-the "worst of the worst"-there has been no fair legal process by which such claims have been tested. To treat returnees as criminals who pose a threat of recidivism ignores the circumstances of their capture and detention at Guantanamo, even if it assuages US security concerns.

Finally-and most practically-the proposed rehabilitation center has yet to be built. Given the January 2010 deadline for Guantanamo's closure, this may increase the odds that future returnees will end up in a rehabilitation program in Saudi Arabia, where they could also face prolonged detention without charge, or, like previous returnees, in what is clearly the default solution: the jails and prisons run by Yemen's security services.

The experience of "Fahmi Muhammad," who was repatriated from Guantanamo in 2004, underscores this risk.[2]He told Human Rights Watch that upon his arrival in Yemen the authorities threw him into a political security prison and tried to beat him into falsely confessing that he was acting as a US spy.

As he described it:

I was tortured for five days, from nine in the morning until dawn. The cell was dark. They beat me with shoes. 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."

Although Muhammad endured the worst treatment by far, other returnees and their lawyers also told Human Rights Watch of abuse. All 14 of the former Guantanamo detainees who have been returned to Yemen were detained by Yemeni security services, most for two to three months. Some of them claim to have been held in squalid conditions, in at least two cases underground, with no access to legal counsel and only sporadic family visits. The Yemeni authorities did not free them until they had secured a guarantor: a relative, tribesman, or prominent businessman who faces fines or imprisonment if the released man misbehaves.

Notably, the former detainees have received no counseling, job training, financial assistance, or other help reintegrating into Yemeni society. To the contrary, they are required to report regularly to local security officials, and are branded as terror suspects, a near-insuperable obstacle to finding employment. "I can't get a job, not when people know I've been in Guantanamo and Political Security," said Muhammad, noting that most Yemenis dread the security services' attention. "People are afraid."

Muhammad's situation is illustrative on many fronts. Penniless and depressed, he also cannot get a loan, and has no access to medical care. With no money to afford a home for his family, he lives away from his wife and child. "If our brothers at Guantanamo knew of these conditions," he told Human Rights Watch, "they would not want to return."

In fact, unlike citizens of certain other countries at Guantanamo and Bagram, nearly all of the Yemenis are eager to go home. But if they return to continued abuse in detention, and face bleak reintegration prospects upon release, they may become the security risks that US policy-makers fear.

A comprehensive reintegration program that respects detainees' rights and helps them build productive lives could well cost millions of dollars, a sum that Yemen, the poorest country in the Middle East, can hardly afford. In keeping with its international obligations to provide an effective remedy to victims of human rights violations, the United States should provide most of the funding and oversight for such a program.

In certain circumstances, it may be appropriate for Yemen to monitor the movement and associations of returned detainees. The government should not, however, impose restrictions that would be equivalent to a punishment resulting from a conviction on a criminal charge. Any restrictions require a fair legal process-one that relies on evidence brought before a court, with a right to contest the evidence and to appeal the ruling-not just a presumption of guilt stemming from the returnee's previous detention at Guantanamo.

The United States and Yemen should act swiftly to reenergize negotiations and organize the return of Yemeni detainees. Crafting a fair, humane, and immediate solution for these men is a strategic necessity as well as a legal and moral imperative. Violating the rights of individuals-whether at Guantanamo or Bagram, in Saudi Arabia or Yemen-spurs terrorist recruitment, giving groups like al Qaeda a powerful tool for persuading disaffected youths to join their cause. By contrast, making an unqualified break with the Bush administration's abusive detention practices will help President Obama wield the moral authority that the United States needs to effectively fight terrorism both at home and abroad.