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TechnoratiThe Yemeni Detainee Population
An estimated 99 Yemenis remain at the Guantanamo Bay detention facility, the vast majority of whom have been held for years without charge. While Afghan and Saudi detainees outnumbered Yemenis during Guantanamo's early years, about 90 percent of detainees from those two countries were sent home in a steady flow of repatriations from 2003 to 2007.[38] As of this writing, Yemenis were by far the largest single group at Guantanamo, constituting more than two-fifths of the prison population. If Guantanamo is to close by January 2010, as President Obama has promised, a solution must be found to their illegal detention.[39]
Confusion over the nationalities of some Guantanamo detainees has led to disagreements over the exact number of Yemenis at the camp.[40] In particular, certain prisoners are listed as Saudi in military documents but as Yemeni by Yemen. Some of the confusion reflects long-standing population flows between Yemen and Saudi Arabia. A number of detainees are of Yemeni heritage, but were born and have spent most of their lives in Saudi Arabia.[41] Detainee Abdul Rahman al-Qyati, for example, is listed as Yemeni but was born in Saudi Arabia to Yemeni parents. "He has never set foot inside Yemen," said his lawyer, Darold Killmer. "He is as Saudi as you get."[42]
Yemeni officials believe some of these men, including those who are Yemeni by law, will want to return to Saudi Arabia.[43]
Most of the Yemenis were among the earliest arrivals to Guantanamo in 2002, although some were sent to the detention facility in 2003 and 2004, and two others were transferred from CIA custody to Guantanamo in September 2006.[44] Some had been taken into custody in Afghanistan; another large group was rounded up in Pakistan; others were picked up in locales as varied as Iran, Dubai, and Egypt.[45]
Yemenis are the largest single group to have been "disappeared" in CIA custody. A number of those so-called ghost prisoners were subsequently transferred to Guantanamo or the US-run prison at Bagram Air Base in Afghanistan, where two Yemenis are still being held.[46] At least two of them-Ali al-Hajj al-Sharqawi and Hassan bin Attash-were transferred by the CIA to Jordan for periods of proxy detention, and subsequently returned to US custody and brought to Guantanamo in September 2004.[47]
Only four Yemeni detainees at Guantanamo have ever faced charges before the camp's military commissions, whose operations have been suspended pending a review led by the attorney general.[48] Salim Hamdan, who served as a driver for Osama bin Laden, was sentenced to five-and-a-half years of imprisonment, minus five years time served, and returned to Yemen in December 2008; Ali Hamza Ahmed Suleiman al-Bahlul, an al Qaeda propagandist, was convicted and is serving a life sentence at Guantanamo.[49] They represent two of only three detainees at Guantanamo to have been convicted by the military commissions. Two other Yemenis-Ramzi bin al-Shibh and Walid bin Attash-have been charged with helping plan and organize the September 2001 attacks.[50] Both face the death penalty if convicted.
Although it is likely that additional Yemenis will be criminally charged, perhaps in US federal court, most of the Yemeni detainees probably will not be prosecuted by the United States.[51] The attorneys for the majority of the Yemenis contend that their clients neither planned nor committed any crimes against the United States and are no more of a threat than any other detainees who have been released.[52] A US Defense Department official told Human Rights Watch, however, that the Pentagon still considered the majority of Yemenis "high risk."[53] Documents relating to the military status review proceedings against some of them make strong claims, including allegations of membership in al Qaeda, but the non-classified documents often cite little meaningful evidence to support the allegations. Furthermore, even US federal judges who have examined the classified information behind such allegations have in many cases dismissed the evidence as compromised or flimsy.[54]
Many Yemenis at Guantanamo contend that they were arrested on the barest of circumstantial evidence, or simply because of their nationality. Hussein Almerfedi, who grew up in southern Yemen and was arrested in Iran, for example, has long claimed that he was merely trying to sneak into Europe to look for work.[55] Almerfedi was reportedly cleared for release in early 2009.[56]
Several Yemenis suffer from severe depression or other psychological problems that their lawyers argue either stem from or were exacerbated by indefinite detention and harsh treatment at Guantanamo.[57] One Yemeni died in Guantanamo in an apparent suicide.[58]
Like detainees from other countries, nearly all the Yemenis at Guantanamo have filed habeas corpus petitions in US federal court to challenge the legality of their imprisonment. It was only with the US Supreme Court's June 2008 ruling in the Boumediene case, however, that the lower courts began to address these claims on the merits.[60] In Yemeni petitions decided so far, a federal judge ruled that the United States had met its burden of proof to continue holding at least two men as "enemy combatants." One ruling, in December 2008, involved Moath Hamza Ahmed al-Alwi, whom the government describes as a bin Laden bodyguard.[61] The other, in January 2009, involved Ghaleb al-Bihani, who according to his lawyers was a cook for the Taliban in Afghanistan. ("An army marches on its stomach," Judge Richard Leon reasoned, quoting Napoleon.[62]) The same month, another federal judge delayed a ruling in another pending habeas case because government lawyers had withheld classified documents from the court.[63]
Yemenis at Bagram
The father of Amin al-Bakri, one of the two detainees, said he had to hire a private detective to learn that his son, a gem trader and father of three, had been seized in late 2002 during what he says was a business trip to Thailand. He said he did not receive a letter from his son for a full year after his arrest.[65]
"We have never before been exposed to such injustice," said the father, Muhammad al-Bakri, who collected 50,000 signatures for a petition, plastered 2,000 posters across Yemen, and persuaded nearly 350 sultans and sheikhs to request the Yemeni president to help free his son. "Our family has been through such torture . . . . We go to sleep remembering him and we wake up remembering him."[66]
Attorneys for the Yemenis at Bagram say their clients should be included in any US-Yemeni release agreement. "There is really no difference between Guantanamo and Bagram from the perspective of repatriation," said Tina Foster, an attorney who represents the two prisoners. "It is the same issue of people being held for unspecified reasons and ofbeing denied basic human rights for many, many years."[67]
[38]Some 120 prisoners from Saudi Arabia and about 220 from Afghanistan were repatriated during that period, leaving a dozen from the former country and fewer than three dozen from the latter. Other countries with 10 or more citizens in detention at Guantanamo as of early 2009 include Algeria, Tunisia, and China (17 ethnic Uighurs who would face persecution if returned home). More than 525 prisoners have been released or transferred out of Guantanamo in the last seven years.
[39] Just after taking office, President Obama issued an executive order setting out a one-year deadline for the closure of the detention facility at Guantanamo. Executive Order, "Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities," January 22, 2009, http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities (accessed February 27, 2009).
[40] The Yemeni Embassy in Washington, DC, told Human Rights Watch there are 99 Yemenis at Guantanamo. Attorneys representing Yemenis said that they believe 94 to 97 of the detainees are Yemeni. The US State Department and Defense Department told Human Rights Watch there are "about 100" of them. Human Rights Watch telephone interviews, Washington, DC, February 2009. The National Organization for Defending Rights and Freedom (HOOD), a prominent Yemeni human rights group, released a list of Yemeni detainees on January 11, 2009, that included 104 names, but told Human Rights Watch the true number is between 95 to 99 after accounting for discrepancies in names and nationalities.
A senior Yemeni official told Human Rights Watch in December 2008 that a Yemeni government delegation had traveled to Guantanamo to assess the citizenship of the purportedly Yemeni detainees, and found three who were not, in fact, Yemeni. (He said that one was Saudi, one was Sudanese, and one was Libyan.) He estimated there were 102 Yemeni detainees held at Guantanamo. Human Rights Watch interview with Amar Saleh, deputy chief of Yemen's National Security Bureau, Sanaa, December 21, 2008.
[41]Walid and Hassan bin Attash, for example, were both born in Saudi Arabia, but their family is from Yemen.
[42]Human Rights Watch telephone interview with Darold Killmer, attorney, Denver, Colorado, March 9, 2009.
[43] Human Rights Watch interview with Saleh, December 21, 2008. Yemenis serve as a large pool of migrant labor in Saudi Arabia.
[44] At least six Yemenis-Mahmoud Abd Al Aziz Abd Al Mujahid, ISN 31, Abdul Malik Abdul Wahab Al Rahbi, ISN 37, Ali Hamza Ahmed Suleiman Al Bahlul, ISN 39, Samir Naji Al Hasan Moqbel, ISN 43, Muhammad Rajab Sadiq Abu Ghanim, ISN 44, and Ali Ahmad Muhammad Al Razehi ISN 45-were on the very first flight, on January 11, 2002, that brought detainees from Afghanistan to Guantanamo. Other Yemenis arrived on additional flights that same month. See Reprieve, "The Journey of Death-Over 700 Prisoners Illegally Rendered to Guantanamo Bay with the Help of Portugal," January 28, 2008, http://www.reprieve.org.uk/documents/08.01.28FINALTheJourneyofDeath-Over700PrisonersIllegallyRenderedtoGuantanamoBaywiththeHel.pdf (accessed February 27, 2009).
At the other end of the spectrum, Yemenis were also among the very last prisoners to end up at Guantanamo. Four Yemenis-Sanad Ali Tislam al-Kazimi, ISN 1453, Hassan Bin Attash, ISN 1456, Al Hajj Abdu Ali Sharqawi, ISN 1457, and Abdul Salam al-Hela, ISN 1463-were transferred to Guantanamo along with several other prisoners on September 17, 2004, the last detainee transfer to the facility for nearly two years. In September 2006, two more Yemenis-Ramzi bin al-Shibh, ISN 10013, and Walid bin Attash, ISN 10014-were among a group of 14 prisoners transferred from secret CIA prisons to military custody at Guantanamo.
[45] Salim Hamdan, for example-who was sent to Guantanamo in May 2002-was arrested at a roadblock near Kandahar, Afghanistan, in late November 2001. Carol J. Williams, "Bin Laden's Driver Is Going Home," Los Angeles Times, November 25, 2008. Hamdan was the named petitioner in the case of Hamdan v. Rumsfeld, in which the US Supreme Court in 2006 ruled that the executive branch had no authority to establish the system of military commissions at Guantanamo without legislation from Congress.
A number of Yemenis were picked up in Karachi, Pakistan, most of them in September 2002. The group includes Ayoub Murshid Ali Saleh, ISN 836, Bashir Nasir Ali al-Marwalah, ISN 837, Shawki Awad Balzuhair, ISN 838, Musab Omar Ali al-Mudwani, ISN 839, Ha Il Aziz Ahmed al-Maythali, ISN 840, and Hassan Bin Attash, ISN 1456. The US government claims that many of the men were arrested during raids on a militant safehouse. See, for example, US Department of Defense, "Unclassified Summary of Evidence for Administrative Review Board in the case of Bin Attash, Hassan Muhammad Salih," October 31, 2005, http://www.dod.mil/pubs/foi/detainees/csrt_arb/ARB_Round_1_Factors_000895-000943.pdf#1, (accessed February 19, 2009).
[46] The CIA has held at least 20 Yemenis in secret detention at various points since 2001, which makes Yemenis the largest single group to have been "disappeared" into CIA custody. All of the Yemenis who were transferred to Guantanamo in September 2004 and September 2006 had previously been held in CIA custody, some of them for years. While in CIA custody, they are known to have been subject to a range of serious abuses. See, for example, Amnesty International, "USA/Yemen: Secret Detention in CIA 'Black Sites,'" November 2005.
[47] Both al-Sharqawi and bin Attash were arrested in Pakistan in 2002. In a note that al-Sharqawi wrote while detained by the Jordanian intelligence services, he said that he was beaten "in a way that does not know mercy." There is also evidence that Yemeni detainee Ramzi bin al-Shibh was rendered by the CIA to Jordan and detained there for a time before being returned to CIA custody. See Human Rights Watch, Double Jeopardy: CIA Renditions to Jordan, April 2008, http://www.hrw.org/en/node/62263/section/5, pp. 22-23. See also Joanne Mariner (Human Rights Watch), "We'll make you see death," commentary, Salon.com, April 10, 2008, http://www.hrw.org/en/news/2008/04/09/well-make-you-see-death.
[48] The executive order that set the one-year deadline for Guantanamo detention facility's closure also suspended the operation of the military commissions. The order specifically requires US officials to assess "whether it is feasible to prosecute [detainees at Guantanamo] before a court established pursuant to Article III of the United States Constitution," that is, before a regular federal court. Executive Order, "Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base," http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities, sec. 4(c) (3).
[49] Hamdan, whom the presiding officer at his trial called a "small player," was convicted on July 21, 2008, of providing material support to al Qaeda. The court ruled that his sentence would include the five years that he had spent in US custody awaiting trial. He was repatriated in November 2008 to serve the final month of his prison term in Yemen.
Al-Bahlul was convicted on November 3, 2008, of conspiring with al Qaeda, soliciting murder and providing material support for terrorism, including a recruitment video he made that spliced bin Laden speeches with footage of the USS Cole bombing. Two prosecutors resigned from his case because of suspicions that his captors had tortured him to obtain evidence.
[50]Neither bin al-Shibh nor bin Attash deny their guilt. Indeed, bin al-Shibh told a military judge in January 2009 that he was "proud of September 11." "9/11 Suspects Face New Hearing," Aljazeera.net, January 20, 2009, http://english.aljazeera.net/news/americas/2009/01/2009119172511702723.html (accessed January 20, 2009).
[51]As of February 2009, the US Department of Defense had brought charges against a total of 27 detainees at Guantanamo, although in a few cases the charges had been dropped. The military has long said that only 60 to 70 detainees would ever be charged under the commissions, and many experts thought even that estimate was probably too high.
[52] Telephone interviews and email communications with attorneys including David Remes, Sarah Havens, and Pardiss Kebriaei, Washington, DC, and New York, February 2-9, 2009.
[53]Human Rights Watch interview with a US Defense Department official close to Guantanamo issues, February 18, 2009.
[54]For example, in November 2008, US federal judge Richard Leon ordered the immediate release of five Algerian-born Bosnian prisoners at Guantanamo after concluding the government's evidence was "not sufficient" to detain them as enemy combatants. "To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation," Leon declared. Boumediene v. Bush, US District Court, Washington, DC, No. 01-1166, memorandum order, November 20, 2008, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276 (accessed March 11, 2009).
Five months earlier, the US Court of Appeals for the DC Circuit rejected the US government's designation of another Guantanamo detainee as an "enemy combatant" because of evidence it described as unreliable and insufficient. The decision involved Houzaifa Parhat, one of 17 Guantanamo detainees who are Uighurs, an ethnic minority group in China. The United States conceded the decision would apply to all the Uighurs, although it is still holding them. See Parhat v. Gates, US Court of Appeals, Washington, DC, No. 06-1937, June 20, 2008, http://pacer.cadc.uscourts.gov/common/opinions/200806/06-1397-1124487.pdf (accessed March 11, 2009).
In an important 2005 case, federal judge Joyce Hens Green concluded that German-born Murat Kurnaz was being illegally held at Guantanamo, writing that even the classified portion of his file was "rife with hearsay." Kurnaz was repatriated to Germany in July 2006. See Mark Landler and Souad Mekhennet, "German Detainee Questions His Country's Role," The New York Times, November 4, 2006, http://www.nytimes.com/2006/11/04/world/europe/04germany.html?scp=1&sq=nurat%20kurnaz&st=cse (accessed March 11, 2009).
[55]US Department of Defense, Combatant Status Review Tribunal, Hussein Almerfedi (name transliterated as Muhammad Hussein Salem), December 8, 2004, http://projects.nytimes.com/Guantánamo/detainees/1015-hussein-salem-Muhammad (accessed February 6, 2009), pp. 1-13.
[56]Email communications from Remes to Human Rights Watch, February 6, 2009.
[57] President Obama's executive order of January 22, 2009, required humane standards of confinement at Guantanamo and conformity with "all applicable laws governing the conditions of such confinement." Human Rights Watch and other rights groups question a Pentagon report released a month later in response to that order by Adm. Patrick M. Walsh, the vice chief of US Naval Operations, that concludes conditions at Guantanamo complied with the Geneva Conventions, which among other things bar "humiliating and degrading treatment." See US Defense Department, "Review of department compliance with president's executive order on detainee conditions of confinement," February 23, 2009, http://www.defenselink.mil/pubs/pdfs/review_of_department_compliance_with_presidents_executive_order_on_detainee_conditions_of_confinementa.pdf (accessed March 11, 2009).
Since Walsh's report was released, several Guantanamo lawyers have told Human Rights Watch that their Yemeni and other clients continue to receive degrading treatment. Furthermore, a report released by the Center for Constitutional Rights the same day as Walsh's report concludes that the detainees continue to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, physical abuse, and threats of violence from their captors, and that this has jeopardized their mental health. Among other abuses, the report describes a brutal beating of a Yemeni detainee, Yasin Ismael, for reportedly throwing his shoe against the inner mesh of a cage in which he was held. The Pentagon denies Ismael's allegation. See CCR, "Conditions of Confinement at Guantánamo: Still in Violation of the Law," http://ccrjustice.org/learn-more/reports/current-conditions-confinement-guantanamo (accessed March 10, 2009).
[58] The Pentagon says Yemeni Salah Ali Abdullah Ahmed al-Salami, who was arrested in Pakistan in March 2002, committed suicide inside Guantanamo in June 2006, but his family alleges he died from abuse and has filed a lawsuit alleging government negligence in his death. Al-Salami's brother Muhammad Ahmed Taher remains in detention at Guantanamo.
[59] Letters from Adnan Latif to attorneys David Remes and Marc Falkoff, January 8, 2009.Latif, who has been held at Guantanamo for seven years, told a military review board in 2004 that he went to Afghanistan for a charity-funded operation to treat head injuries from a car accident. The panel's judge rejected his plea to check hospital records that would support his story. The hospital records, later obtained by his lawyers and sent to Human Rights Watch, described acute injuries from the accident and recommended he seek surgery at a specialized clinic.
[60] In Boumediene v. Bush, 553 U.S. __ (2008), the Supreme Court ruled that the US Constitution guarantees detainees held at Guantanamo a right of access to federal court. As discussed below, detainees held at Bagram are still litigating the question of federal court jurisdiction over their claims.
[61] "Judge Denies Release For 2 at Guantanamo," December 31, 2008, The Washington Post,http://www.washingtonpost.com/wp-dyn/content/article/2008/12/30/AR2008123003031.html (accessed March 16, 2009).
[62]Al-Bihani v. Obama, US District Court, Washington, DC, no. 05-1312, January 28, 2009, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1312-89 (accessed March 12, 2009).
[63] "Judge: Government hiding evidence in Gitmo case," Associated Press, January 6, 2009, http://www.miamiherald.com/news/americas/Guantánamo/story/840163.html (accessed January 29, 2009). The petitioner in the case is alleged Taliban doctor Aymen Saeed Batarfi.
[64]The US government claims that because the men are being held in an "active theater of war," they can be held until the end of hostilities without judicial review of the grounds for their detention. The petitioners counter that the men were picked up in four different countries and transferred to Bagram, where they have been held for years without charge or access to counsel. In a short document filed in federal court on February 20, 2009, the Obama administration adopted the position previously set out under the Bush presidency, arguing that the detainees should have no right of access to court. "Having considered the matter, the government adheres to its previously articulated position," the new administration's court filing stated. Charlie Savage, "Obama Upholds Detainee Policy in Afghanistan," The New York Times, February 22, 2009.
[65]Human Rights Watch interview with Muhammad al-Bakri, Sanaa, Yemen, December 18, 2008. The US government claims that Fadi al-Maqaleh, the other Yemeni held at Bagram, was taken into custody in southern Afghanistan; al-Maqaleh's lawyers deny this. See First Amended Petition for Writ of Habeas Corpus, Al-Maqaleh v. Gates, Case No. 1:06-cv-01669 (JDB), February 12, 2007, http://graphics8.nytimes.com/packages/pdf/topics/bagram/Petition1.pdf (accessed February 26, 2009).
Abdulsalam al-Hela, a Yemeni detainee who was picked up in Egypt, was held with al-Bakri at Bagram prior to his transfer to Guantanamo in September 2004. It is not known why the military chose to send al-Hela to Guantanamo while keeping al-Bakri at Bagram. See Human Rights Watch, Cairo to Kabul to Guantanamo, March 28, 2005, http://www.hrw.org/en/reports/2005/03/30/cairo-kabul-guantanamo (quoting a letter from al-Hela that describes being held with "a [Yemeni] merchant, who was arrested in Thailand and brought to Afghanistan").
[66] Human Rights Watch interview with al-Bakri, December 18, 2008.
[67] Human Rights Watch telephone interview with Tina Foster, executive director, International Justice Network, New York, February 2, 2009.