Roadblocks to Repatriation

Only 14 Yemeni detainees who have been detained at Guantanamo since 2002 have been repatriated. While many of the estimated 99 Yemenis who remain are entering their eighth year in captivity, US-Yemeni negotiations on their fate seem to have stalled. Except for Salim Hamdan, sent home in November 2008 after his conviction by a US military commission, no one has been repatriated to Yemen in the past one-and-a-half years.

The first Yemeni was repatriated in 2004, with several others following in the three subsequent years. But with al Qaeda activity in Yemen on the increase, and US-Yemeni relations worsening over Yemen's refusal to extradite two accused al Qaeda suspects to the United States, returns stopped in late 2007.[68]

Attorneys who met with Yemeni clients at Guantanamo in January 2009 describe collective weariness and despair. Yemenis had become the majority of participants in a long-running hunger strike, swelling the numbers that month to at least 40 and possibly 70. It was the biggest hunger strike at the prison in three years.[69]

The Yemenis were upset that Hamdan is the only recent repatriation. "The men think it is the cruelest unfairness," said attorney David Remes, who represents 16 Yemenis at Guantanamo. Describing his clients' thinking, he said, "'This guy was convicted of aiding terrorism and now he is a free man, while I'm still here even though I haven't been charged with anything.'"[70]

Underscoring the arbitrary impact of the impasse on returns is the fact that at least 11 Yemenis who remain at Guantanamo were cleared for return to Yemen as long ago as 2005.[71]

They include Fahd Ghazy, who was picked up in Pakistan when he was 17 and was one of the earliest arrivals at the camp in 2002. Told in late 2007 that he was going home, Fahd was "very excited," said his lawyer Julia Symon. A model prisoner who passed 20 lie detector tests and got on well with the guards, "he thought his good behavior paid off."[72]

But as the months passed, Ghazy became "incredibly frustrated," and his anguish increased after President Obama's pledges to close the prison still brought no news of a release date. In February, he was asking, "Why am I still here?" Symon said. "Why am I not going home?"[73]

Not Even a Shell of an Agreement

Publicly, both Yemen and the United States have stated that they want most of the Yemenis to return home as soon as possible. Four days after President Obama took office, Yemeni President Saleh said his government would have a rehabilitation center ready in three months to receive Yemeni returnees.[74]

In reality, however, the two countries have only settled on the most basic elements of a repatriation agreement: what an official at the US Embassy in Yemen told Human Rights Watch was "not even a shell."[75] Each government has blamed the other for the lack of progress.

"The obstacles are generally from the US side," said Yemeni Interior Minister Mutahar Rashad al-Masri, in a December 2008 interview with Human Rights Watch. He arched one brow and held up his palms in a gesture of helplessness. "I wonder, do the Americans have a real will to release the Yemenis from Guantanamo?"[76]

"Is it a will issue or a capacity issue?" a US Embassy official asked in turn, referring to the Yemenis.[77]

The two countries do agree on certain points. Both say that repatriated detainees should receive counseling and job training, and should participate in a religious dialogue aimed at dissuading them from violence. Negotiators also concur that returned captives suspected of violating Yemeni law should be investigated and prosecuted in the Yemeni courts. And, notably, both sides agree that detainees should continue to be held for some unspecified period upon return for what they describe as rehabilitation.[78]

Beyond that, the two governments have yet to resolve key issues, including some with serious human rights implications. These include who will fund the planned rehabilitation center, how long people will be held, what criteria and procedures will be used to determine release, and what restrictions, if any, should be imposed on released prisoners who are still considered a potential threat.[79]

Security Concerns

The Yemenis at Guantanamo and Bagram who are alleged to be most dangerous are not likely to be sent home.  Men like Ramzi bin al-Shibh, implicated in the September 11 terrorist attacks, will probably be criminally prosecuted, perhaps in US federal courts. 

But the US government is worried that there are some prisoners at Guantanamo-including Yemenis-who cannot be prosecuted and yet still pose a threat.  These fears have sparked public discussion of delaying Guantanamo's closure or of establishing a similar preventive-detention regime on US soil.[80]  They also raise the prospect that the United States would like at least some prisoners to continue to be detained in their home countries.[81]

As pressure to speed returns has increased, the Pentagon has highlighted these concerns, declaring days before President George W. Bush left office in January 2009 that 61 of the 525 Guantanamo detainees released so far have "returned to the fight."[82] Significantly, the Defense Department has failed to provide information to refute widespread claims that its figure appears to have been vastly inflated. Among many causes for skepticism, the number apparently includes former detainees who have engaged in "propaganda warfare" by speaking out publicly about the abuses they suffered at Guantanamo.[83] Nevertheless, the figure continues to be relied upon in public discussion. A small number of high-profile cases have given further ammunition to these arguments.[84]

For several overlapping reasons, US fears of recidivism are particularly acute with regard to Yemen. Most important are the country's strong al Qaeda presence and historical connection to prominent al Qaeda figures, the government's perceived lenience toward elements of the group, and the existence of tribal areas outside of government control where its members can easily operate. US officials also worry that even suspects who are convicted of terrorist crimes upon return could find their way free, in light of the suspicious breakout of 23 al Qaeda members and suspected affiliates from a high-security prison in Sanaa in 2006.

US Deputy National Security Advisor John Brennan, who is President Obama's top counterterrorism official, met with President Saleh in Yemen in March 2009 to personally relay the Obama administration's preoccupations about repatriating the detainees.[85] That same month, US negotiators reiterated those concerns in meetings with Yemeni diplomats in Washington, DC.[86]

Further complicating discussions over security risks is recent, negative publicity about a Saudi religious "re-education" program for former detainees that US and Yemeni negotiators had considered a model for repatriating Yemenis. The rehabilitation program had widely been touted as an effective "soft" strategy to combat terrorism.[87]

The Saudis reported in January 2009 that 11 former Guantanamo detainees who went through the rehabilitation program had joined armed militant groups, including two who traveled to Yemen and joined al Qaeda (one of those two has since been rearrested[88]). Those still in hiding include Said al-Shihri, whom al Qaeda describes as the new deputy commander of al Qaeda in the Arabian Peninsula. 

"Imprisonment made us more determined in our conviction . . . and today God has blessed us with immigration to the land of jihad, Yemen," al-Shihri declared in a video, clutching an assault rifle and sporting a bandolier over his camouflage tee-shirt.[89]

Noting that no rehabilitation model is free of recidivism, the United States still supports the Saudi program. Underscoring its wariness about Yemen, US officials have even proposed transferring an undisclosed number of Yemeni detainees from Guantanamo to the Saudi program, particularly those with Saudi family ties.[90] President Saleh has publicly protested the proposal.[91]

Commentators have also noted that four Yemenis are related to suspected or known al Qaeda members.[92] Attorneys for those detainees bristle at the notion of guilt by association. "The fact that someone has a relative who is perceived to be dangerous does not speak at all to the detainee's future dangerousness," said Sarah Havens, an attorney whose Guantanamo client Ali Yahya Mahdi al-Raimi is the brother of Qasim al-Raimi, a ranking al Qaeda member. "And it is not something that we as a society built on the rule of law accept, that you can hold somebody based on the crimes of their relatives."[93]

To be sure, the United States runs the risk that some repatriated Yemenis may turn out to be dangerous. But continuing to detain these men without charge creates a potentially greater risk. Those on the front line understand this well. As the US Army's new Field Manual on Counterinsurgency Operations explains, rather than trying to achieve the impossible by detaining every possible armed insurgent, the United States must undercut the militant groups' appeal.

 "Dynamic insurgencies can replace losses quickly," explains the Army Field Manual. The way to win, therefore, is to "cut off the sources of that recuperative power" by diminishing the enemy's legitimacy, while increasing one's own. The manual cautions that the United States loses its legitimacy, and therefore its ability to win the fight against al Qaeda, if it engages in illegitimate actions such as "unlawful detention" and "punishment without trial." [94]

Proxy Guantanamo?

While Yemeni officials have said they would put on trial any repatriated detainees accused of violating Yemeni law, US and Yemeni officials often use terms like rehabilitation and job training when they describe their plans for the rest. At other times, however, their language leaves open the risk of a proxy Guantanamo in Yemen, where former prisoners could be indefinitely detained on the unproven chance they may cause harm in the future.

The fact that detainees who have already been repatriated to Yemen have been held without charge-most for two or three months but one for up to two years, reportedly at the behest of the United States-is cause for concern that many of their countrymen still at Guantanamo could face a similar fate, and potentially a worse fate if the US presses Yemen to find a way to hold them for longer periods.

In a December 2008 meeting with Human Rights Watch, an official at the US Embassy in Yemen said the United States would like the Yemeni government to place the repatriated detainees in "basically a prison facility with a programmatic aspect to it."[95] The goal, he explained, is "to rehabilitate them and reintroduce them to society in a way that the threat that they pose has been mitigated to the largest extent possible."[96] The Obama administration has signaled that it would not expect the Yemenis to hold detainees without either charging them or finding an incentive for them to remain in rehabilitation. However, it has not distanced itself from the idea that for an undisclosed number of detainees, rehabilitation would be under lock and key.

Col. Amar Muhammad Saleh, deputy chief of Yemen's National Security Bureau and the president's nephew, who is involved in the negotiations, minimized the detention aspect. The still-unbuilt rehabilitation center, he said, will resemble a "camp."[97]

Saleh said the center would cater to the detainees' needs, offering psychological evaluation and treatment for trauma, job training, sports, and workshops where teachers will engage participants "in a dialogue to correct their ideas." Families will be able to visit repatriated detainees, and "we'll give them jobs."[98]

A brief, written summary of Yemen's rehabilitation proposal that government officials provided Human Rights Watch in February 2009 offered additional details which, if taken at face value, sound promising. The document (see Appendix below) pledges that Yemen will train the detainees for a range of jobs, from computer programming to carpentry, blacksmithing, and woodworking. It states that religious dialogue coaches will instruct detainees on Islamic tenets that reject violence in the aim of persuading them to "accept the concepts of good citizenship, tolerance and coexistence with others." It acknowledges that Yemen will need specialists to individually evaluate detainees in the context of their social backgrounds, and to assist communities in accepting the repatriated men upon their release. It also promises follow-up treatment.

Human Rights Watch is concerned, however, that the proposal is based on an underlying presumption of guilt. Instruction will be aimed at "preventing" detainees from "returning to their previous lives," and members of the center's Department of Social and Health Rehabilitation will "analyze . . . the causes that have contributed to their joining terrorist groups," the document states.

That presumption of guilt against men who have not been charged with an offense, let alone convicted, and who have already been held captive for years in abusive circumstances, could easily backfire. "I don't care if the prison looks like a five-star hotel," said Khaled al-Anisi, executive director of the National Organization for Defending Rights and Freedom (HOOD), a group close to the Islah Party that advocates for detainees. "When you are dealing with persons who have never been charged with a crime, rehabilitating them as if they were criminals doesn't work."[99]

Equally troubling, the summary of the rehabilitation proposal does not explain how long authorities would hold repatriated detainees or how they would determine whether they are ready for release. Nor does it outline any fair and transparent process for detainees to appeal their continued detention.

Government officials' comments on that subject were not particularly reassuring. Saleh said the government anticipated holding detainees for anywhere from a month to a year or more until they had determined whether they had been rehabilitated. He agreed with the United States that some repatriated detainees might pose a security threat, but insisted that Yemeni authorities would not arbitrarily detain any of them without evidence. Indeed, he said, Yemen had already resisted US proposals for preventive detention. "The Americans want us to keep some of them in jail but unfortunately we don't have the files with any evidence. That is why we have refused," he said. "We say, 'If you want them locked up, send us the files and we will send them to court.'"[100]

Unfortunately, history suggests Yemen may not be as unyielding as Saleh insists. Yemen detained all 14 men repatriated from Guantanamo thus far in its Political Security Organization prisons, most without charge. In 2005, Amnesty International reported that the head of political security in Sanaa said authorities were holding them at the behest of the United States.[101] In addition, the Yemeni government's practice of detaining hundreds of people for months or years without charge is well documented, making the prospect that it could arbitrarily hold repatriated Guantanamo detainees all too plausible.[102]

The fact that Yemen and the United States view the Saudi rehabilitation as a model-and that the United States might try to send an unknown number of Yemeni detainees to the Saudi program-is also troubling because of the Saudi government's record of prolonged detention without charge. While Guantanamo detainees generally spent two to six months in the Saudi program, Human Rights Watch was told that 10 Guantanamo returnees remained in Saudi rehabilitation as of this writing.[103] Moreover, a Human Rights Watch investigation found that authorities had kept other participants in "rehabilitation" without charge or trial long after their supervisors had recommended their release, in some cases for years.[104]

Human Rights Watch is also concerned that former detainees may be at risk of torture or ill-treatment on return. One repatriated Guantanamo detainee told Human Rights Watch that Yemeni interrogators had tortured him after the United States sent him home, and Yemeni human rights groups have repeatedly accused the government of torturing other prisoners.[105] Senior Yemeni officials denied that Yemen tortures prisoners or holds them indefinitely without charge.[106]

Restrictions upon Release

Foreign Minister Abu Bakr al-Qirbi told Human Rights Watch that Yemen might monitor returned Yemenis and impose restrictions on their movements that were similar to those imposed on detainees repatriated in the past.[107] Restrictions on previous detainees  included confiscating the men's passports, making them obtain permission to travel inside Yemen, and requiring that they report regularly to security officials.

We recognize that the Yemeni government may have ongoing security concerns regarding some of the repatriated prisoners. Monitoring the movement and associations of some of them may be appropriate. 

The government should not, however, impose serious restrictions that are functionally equivalent to punishments normally imposed only following the determination of criminal guilt.

Human Rights Watch considers the following safeguards necessary to bring such security restrictions into line with human rights law: the measures should be provided for in Yemeni law and ordered by a court, with full judicial safeguards; there should be an effective opportunity to challenge the evidence with the right of appeal; individuals should have the right to request that the restrictions be lifted or modified upon presentation of new evidence; and the restrictions should not impede individuals from working or maintaining privacy and a family life.

Without these safeguards, the government's restrictions will be yet another unlawful restriction on these individuals' liberty, and will hinder their reintegration into Yemeni society.

Disputes over Funding

Negotiations over the Yemenis' return have been further complicated by disputes over funding a rehabilitation program, which could cost millions of dollars.

Yemeni officials contend that the United States should provide most of the money. "We are a poor country," Saleh noted. "We say, 'Okay, you want to close Guantanamo? Transfer the budget [from Guantanamo] and we'll run the program.'"

US officials say the United States is committed to "kicking in" but is wary of pouring millions of dollars into a government that has a reputation for corruption. It also is hoping Arab nations will share the costs.[108]

Human Rights Watch appreciates US government concerns about ensuring that government funds spent on rehabilitation programs are properly used. However, having detained these men for years without charge, the United States has a responsibility recognized under international law to assist their reintegration.[109]

There are practical reasons to do so as well: recent research suggests that many armed insurgents were vulnerable to recruitment not because of ideology or violent tendencies, but for lack of other ways to earn a living.[110] Poorly funded rehabilitation programs are likely to exacerbate that problem, serving as little more than window dressing. Yemen once before set up a rehabilitation program to dissuade former or suspected armed militants from violence and that experience also serves as a warning call. Though hailed after its inception in 2002 as a revolutionary approach to countering terrorist tendencies, the program was quietly shelved three years later after a few embarrassing incidents of recidivism.[111] Many political analysts believe the program faltered in large part because of inadequate funding and lack of follow-up care.[112]

Rather than withhold funding, the United States should establish a monitoring mechanism for its disbursement. It also should make the aid contingent upon Yemen refraining from torture and other abusive practices and on allowing an independent monitor to evaluate the men's treatment.

Detainees' Return and Yemen's Clout and Commitment

The Yemeni government's apparent inability or perhaps even unwillingness to expedite the return of the detainees has also slowed negotiations. Unlike many other countries that could leverage their influence with the US government to speed returns, Yemen has relatively little political clout. As many Guantanamo observers have noted, returns to date have largely been determined by nationality-and, in particular, the arm-twisting power of the detainees' country of citizenship-not by factors specific to individual detainees.

Pardiss Kebriaei, an attorney with the US-based Center for Constitutional Rights, put it bluntly: "If the Yemeni detainees had come from a more powerful country, they'd be out."[113] Kebriaei contrasted Yemen with Saudi Arabia, which, as a US ally sitting atop the world's largest oil reserves, secured the release of hundreds of its citizens even though 15 of the 19 September 11 hijackers were Saudi. Others have noted how Western European countries, longtime allies, and Russia, a formidable power, have secured the release of their citizens.

Some US officials, Yemeni opposition lawmakers, and political analysts also question Yemen's commitment to bringing the detainees home, noting that their presence could further complicate President Saleh's delicate balancing act with armed militants and the powerful tribal leaders who support them. As Showqi al-Qathi, an opposition member of Parliament and a moderate imam whose message is "make dialogue, not jihad," observed:

We have a saying in Arabic that if something is stuck in your throat, you want to get rid of it. Guantanamo is stuck in the Americans' throat . . . . But Yemen doesn't want it stuck in its throat, either. [114]

Some political analysts also suspect President Saleh is grandstanding on the detainees' return to gain support from the United States and international donors.

Domestically, President Saleh has little to gain from the detainees' return. Though many Yemenis are angry at what they perceive as US adventurism in Muslim lands, they are-like their US counterparts-far less concerned about the fate of prisoners at Guantanamo than they are about the collapsing economy.[115] "The people in Yemen are fighting for food," one repatriated detainee told us. "They don't think about Guantanamo."