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Hope for Yemeni Detainees?

Over at Politico, Josh Gerstein reports that the Obama administration has broken its self-imposed suspension of transfers to Yemen and sent two long-term detainees from U.S. military custody in Afghanistan to Yemen earlier this week. This is welcome news.

The two men returned to Yemen reportedly have been held in U.S. custody for well over a decade. One of the two, Fadi al-Maqaleh, claims to have been taken into U.S. custody in 2003; the other, Amin al-Bakri, reports being captured in Thailand in 2002. Both have been engaged in a long-standing – and unsuccessful – effort to extend habeas rights to detainees held by the United States at Bagram Air Base in Afghanistan. But while (and perhaps because) these detainees lost their battle for habeas rights, their status has never been politicized in the same way as that of the Guantanamo detainees. Thus, whereas Congress has since 2009 passed a number of restrictions on transfers of detainees out of Guantanamo, it has left decisions regarding transfers of foreigners out of Afghanistan largely to the discretion of the administration.

In many ways, the fate – and actions – of these two men will serve as a litmus test for the Guantanamo detainees. As I have discussed here and here, Congress appears poised to enact a set of deeply misguided bans on transferring Guantanamo detainees to Yemen. Both the House and the Senate have passed such provisions, albeit in different pieces of legislation, neither of which have yet become law. With 88 of the 149 detainees in Guantanamo hailing from Yemen, the majority of whom have been cleared for either transfer or “conditional transfer” (with the conditions dependent in large part on the security situation in Yemen), a ban on transfers forces the U.S. to continue to warehouse men that it has long ago determined ought to be sent home. It also deprives the U.S. of the opportunity to transfer out an initial batch of low-risk detainees, learn from the experience, and correct for any problems if and when higher-risk detainees are ultimately returned there (if for example, there is a determination that the basis for continued detention has expired and the detainees are ordered released by a court).

The return of these men provides the best hope yet of changing this dynamic. If they return peacefully, then the narrative that all transfers to Yemen are so inherently dangerous that we should keep them in our custody into perpetuity, no matter what the particular circumstances of the detainee’s case, starts to fall apart.  (Of course, the fact that these two men are peaceful neither proves nor disproves anything about future transferees; but it does at least establish that long-term detainees can be returned to Yemen without inevitably adding to the terrorists’ ranks.)  If, however, these two men in engage in terrorist activity or even link up with extremist groups, then the likelihood of any of the remaining Yemeni detainees being sent home in the near future will fast approach zero.

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About the Author

is a professor at American University Washington College of Law. You can follow her on Twitter (@jendaskal).