What’s Wrong with a Categorical Ban on Transfers from GITMO to Yemen

As Marty notes, the Senate Armed Services Committee recently approved its version of the National Defense Authorization Act for 2015.  (This will now go to the full Senate for a vote; the House version was adopted two weeks ago.)

In important ways, the Senate provisions are a step forward. In contrast to the House bill, it at least opens up the possibility of transferring detainees to the United States — for purposes of trial, emergency medical treatment, or continued detention pursuant to the law of armed conflict, albeit with a whole range of pre-conditions, reporting requirements, and a mechanism for fast-track congressional consideration of any Guantanamo closure plan. 

But as Marty notes, it comes with a significant cost: a ban on all transfers from Guantanamo to Yemen until the end of 2015.

Approximately two-thirds of the remaining Guantanamo 149 men in Guantanamo hail from Yemen. Fifty-eight have been cleared for transfer or what is known as “conditional” transfer – with the relevant conditions being the security situation in Yemen, the availability of rehabilitation center, or the possibility of third-party placement.

No detainee has been transferred to Yemen since December 13, 2009. Shortly thereafter, Umar Farouk Abdulmatallab, the so-called “Christmas Day bomber;” who was radicalized and trained in Yemen, attempted to detonate a bomb on an airliner headed to Detroit. The Obama administration responded with a self-imposed ban on the transfers of any detainees to Yemen. And although President Obama lifted that moratorium over a year ago, and announced new efforts to facilitate the transfer of detainees, he has not yet sent any Yemenis home.

In fact, as Bobby Chesney, Matthew Waxman, and Ben Wittes noted back in 2011, there has been a remarkable continuity between the Obama and Bush administration in terms of the treatment of Yemen detainees. The catchword is caution. The Bush administration transferred 14 detainees back to Yemen; the Obama administration 9. Neither administration has wanted to release detainees into an uncertain security situation, where there is a risk that the detainee will join forces fighting either the Yemeni government, or even worse, the United States.

That said, there are a group of Yemen detainees who have long been cleared for transfer subject to “appropriate security measures,” and another group that have been cleared for conditional transfer, as described above. Reports indicate that the United States has been supporting the establishment of a rehabilitation facility in Yemen. In fact, one can assume that the newly appointed Special Envoys for Guantanamo closure (housed at State and the Pentagon) are spending a considerable amount of their time trying to put in place a range of protections, including mechanisms for effectively monitoring detainees returned there. The fact that no Yemeni detainee has yet been returned suggests that caution remains the dominant paradigm.

Simply put, there can’t be any ultimate solution to the Guantanamo detainee problem unless and until the administration begins sending back Yemenis. If and when the appropriate security measures are in fact in place, the administration should have a free hand to transfer detainees back there. In fact, an initial set of hand-picked transfers could provide some important information about what works and what doesn’t work, and give the administration a chance to learn from and work out any possible problems.

Interestingly, the Senate Armed Service Committee vote did not follow party lines. The vote was 14-12, with Republican Sen. John McCain (AZ) voting against the ban on Yemen transfers, and Independent Angus King from Maine and Democrats Joe Donnelly (IN) and Kay Hagan (NC) joining the proponents.

It’s not clear what motivated the supporters, but presumably it was based on a classic one-size-fits-all approach to risk management (coupled with some distrust of the administration and possibly some base politics thrown in as well). Yemen is a risky place, so therefore let’s not transfer anybody back there. But this is not only poor risk management, it also is bad policy – effectively forcing the United States to continue warehousing men that intelligence and military officials have cleared for transfer years ago.

Let’s hope that saner heads prevail and this provision is removed during consideration of the legislation on the Senate floor. Or if not then, perhaps in conference with the House? 

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About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).