Mohammed Huwais / AFP / Getty Images

Amid turmoil at home, Yemenis remain stranded at Guantánamo

Analysis: As the Yemeni state collapses and GOP lobbies against releases, Obama faces new obstacles to close prison

President Barack Obama has cited Yemen as the model for his campaign against the Islamic State of Iraq and the Levant (ISIL) movement, but the deteriorating security situation there is raising alarms in Washington over another of Obama’s goals — closing the Guantánamo Bay prison.

Seventy-six of the 122 prisoners who remain in Guantánamo are from Yemen, and 47 of those have been cleared for release. But congressional Republicans have proposed legislation that would prohibit their transfer to Yemen. “Unfortunately, to fulfill a misguided campaign promise, the administration seems to be more interested in emptying and closing Guantánamo, rather than protecting the national security interests of the United States and the lives of Americans," said Senator Kelly Ayotte, R-NH, one of three co-sponsors of the bill.

One prisoner the proposed law would keep from returning to Yemen from Guantánamo is Fahd Ghazy, who has been at the facility since age 17. Ghazy, who has never been charged with any crime, has twice been cleared for transfer — first by the Bush Administration in 2007 and again by President Barack Obama’s Task Force in 2009. He comes from the village of Bayt Ghazy three hours outside the Yemeni capital Sana’a, where his wife and the daughter he doesn't know remain. 

“The Yemeni government has made it clear that they want their citizens back,” said Omar Farah, Ghazy’s lawyer and a staff attorney at the Center for Constitutional Rights. While the Obama administration sees a political risk in returning prisoners to Yemen, Farah told Al Jazeera earlier this month, the captives “want to leave as soon as possible, whether that’s home or to a safe country where they can be resettled.” Ghazy is fluent in English and is studying Spanish, “taking classes and doing everything he can to make himself the best possible candidate for resettlement in Latin America or elsewhere,” Farah added. 

At least three-dozen Yemeni prisoners have been transferred from Guantánamo, only two of whom are believed to have “engaged” in extremist activity by joining Al-Qaeda in the Arabian Peninsula (AQAP): Ali Husayn Abdullah al Tais, who reportedly surrendered to Yemeni authorities in August 2010; and Hani Abdul Muslih al Shulan, who was reported killed in December 2009.

Even that information — which comes from Yemeni state news agencies — is questioned by attorney David Remes, who currently represents 18 Yemeni clients. The reports are based entirely on anonymous security sources, he notes, and warned that asserting someone was part of AQAP was a smear tactic used against many opponents of the former President Ali Abdullah Saleh.

Tais and al Shulan are not even listed publicly by the Pentagon as confirmed recidivists, according to a study of Guantánamo recidivism by the think tank New America. And no other Yemeni former Guantánamo inmates have been accused of joining extremist groups.

“While we cannot comment on specific cases or allegations of reengagement, we take any incidence of reengagement very seriously,” Defense Department detainee policy spokesman Lt. Col Myles B. Caggins III told Al Jazeera by email. “We keep an eye on all former Guantánamo detainees; less than 10 percent transferred during this Administration are suspected of engaging in terrorism or insurgent activities.” But the administration’s former Special Envoy for Guantánamo closure cites an even lower recidivism figure of 6.8 percent.

Congressional anxiety over releasing the Yemenis appears to be political fueled by the growth of ISIL and recent attacks in Paris, but drawing such link “is not even apples and oranges, it’s apples and crocodiles,” said Ramzi Kassem, a law professor at the City University of New York who also represents Guantánamo prisoners. The prisoners, most of whom have not been charged, have been there since before many of today’s extremist organizations existed. Keeping them at Guantánamo because of attacks that took place more than a decade after they were first detained “makes no sense,” Kassem told Al Jazeera. “It’s not related to law,” he said. “It’s not related to logic. It doesn’t even make for sound policy.”

Congressional opposition aside, however, the collapse of Yemen’s U.S.-backed government last week increases the obstacles to sending detainees there, by raising doubts over the viability of local security institutions that could monitor repatriated prisoners.

Remes, who recently returned from Guantánamo, said Yemeni prisoners believe they are being punished because of their nationality, and some would prefer not to return to their home country. Remes’ clients “don’t care where they go as long as they can get out”. He added, “No one is saying keep me here until you find a perfect country where I can live.”

Over the past few months, the Obama administration has been resettling Yemenis in other countries. One man was sent to Slovakia, three to Georgia, three to Kazakhstan, one to Estonia and four to Oman. Lt. Col. Caggins confirmed to Al Jazeera that "our current focus is finding third countries to resettle Yemeni detainees currently eligible for transfer."

President Obama suspended transfers of Guantánamo prisoners to Yemen in January 2010, after “underwear bomber” Umar Farouk Abdulmutallab, a Nigerian, attempted to blow up an a U.S.-bound airliner after being linked with AQAP. 

Following a mass prison hunger strike at Guantánamo in 2013, however, President Obama said he would lift the moratorium on transfers to Yemen. “But there was less to this than met the eye, because being willing to transfer didn't make it any more likely that Obama would actually make transfers,” Remes wrote via email.

Even if they’re paying a price for it, the Yemenis languishing in Guantánamo have no connection to their country’s turmoil. Some of those want to go home and can go home safely, said CCR senior staff attorney Wells Dixon. “It’s not outside the realm of possibility that someone will be sent home to Yemen,” someone like Ghazy, an ill prisoner or a detainee ordered released by court, he added. “Anything is possible if President Obama stays personally engaged in efforts to close the prison. He could have sent these people home years ago but lacked the fortitude to make sure those transfers were carried out.”

Two Yemeni prisoners were, in fact, repatriated from U.S. custody in August 2014 — both from the Parwan Detention Facility at Bagram airbase in Afghanistan. One of those men, Amin Al Bakri, had been held there for more than a decade without being charged or offered a meaningful opportunity to challenge his detention. Al Bakri, who had been diagnosed with leukemia, is now with his family and receiving medical care. “Amin and another Yemeni were released from Bagram consistent with applicable law and regulation from the U.S. military prison…they’ve been in Yemen since then,” Kassem, Al Bakri’s lawyer, told Al Jazeera. “The world hasn’t come to a screeching halt. They’re basically living their lives with their families — lives that were interrupted 12 years ago.”

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