U.S. considers partially lifting ban on transfers of detainees to Yemen

By Peter Finn
Saturday, June 19, 2010; A03

The Obama administration is considering partially lifting its suspension of all transfers of Guantanamo Bay detainees to Yemen, officials said, following a federal court ruling that found "overwhelming" evidence to support a Yemeni's claim that he has been unlawfully detained by the United States for more than eight years.

The case of Mohammed Odaini has become so pressing that senior administration officials, including the secretaries of defense and state, or their deputies, will discuss it next week. A White House official stressed that any decision "should not be viewed as a reflection of a broader policy for other Yemeni detainees."

"What isn't being considered is lifting, in a blanket fashion, the moratorium on detainee transfers to Yemen," the official said, speaking on the condition of anonymity because deliberations are ongoing.

The administration, though, may come under further pressure to quickly release Yemenis besides Odaini. As many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention, a second administration official estimated.

The official said the government may have to periodically carve out an exception to its ban.

"There is a group of Yemenis who are going to win their habeas cases," the official said. "Some of them will not be as clear as this case, but some will be, and that poses a real dilemma."

Odaini's detention

Odaini was a 17-year-old student at a religious institution in Faisalabad, Pakistan, in March 2002 when he accepted an invitation to spend the evening at a nearby guesthouse that he had never before visited. He ended up spending the night, and after Pakistani authorities raided the house overnight, they turned Odaini and a number of other men over to the United States.

The government argued "vehemently" that Odaini's presence in the guesthouse demonstrated that he was part of "the al-Qaeda affiliated network of a man named Abu Zubaydah," according to the court opinion. But a federal judge was unconvinced.

"The evidence before the court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure," wrote U.S. District Judge Henry H. Kennedy Jr., ordering Odaini's release in an opinion that was declassified this month. "There is no evidence that Odaini has any connection to al Qaeda. . . . The court therefore emphatically concludes that Odaini's motion must be granted."

Transfers suspended

In January, after a Nigerian man who had been in Yemen allegedly tried to down a Detroit-bound airliner, President Obama suspended all transfers of detainees to Yemen. A month earlier, Republicans had strenuously objected to the repatriation of six Yemeni detainees.

An interagency task force Obama created has cleared 29 Yemenis for repatriation and conditionally cleared 30 more if security conditions in Yemen improve. Most are likely to stay at the U.S. military prison at Guantanamo Bay, Cuba, for some time. But Odaini's case presents a particular challenge to the administration, and to those on Capitol Hill who are opposed to any transfers to Yemen.

"This is a bad case to argue. There is nothing there. The bottom line is: We don't have anything on this kid," said the administration official. "The judge wants a progress report by June 25th. We have to be able to report something other than we are thinking about it."

In previous cases in which Yemenis have been ordered released, the government has appealed. But the administration official said it would be "unconscionable" to appeal in this case.

Two options

Odaini was recommended or approved for transfer out of Guantanamo Bay by various military or government officials in 2002, 2004, 2007 and 2009, according to Kennedy's judgment. But he remained at Guantanamo Bay.

The administration official said there are basically two options in the case: repatriate Odaini, the son of a retired Yemeni security official, or quickly find another country willing to resettle him.

The second option may be complicated, however. Odaini's "strong preference" is to return home, according to his attorney, David Remes. And countries that have so far resettled Guantanamo detainees have accepted only those who had nowhere else to go and who wanted to be resettled.

There are about 90 Yemenis held at Guantanamo Bay, the largest single group by nationality among the 181 detainees held at the military detention center.

Administration officials fear that the Yemeni government, which does not control all of its own territory and is facing a terrorist threat from a splinter group called al-Qaeda in the Arabian Peninsula, is not able to ensure that released detainees will not return to the fight.

Advocates for some of the Yemeni detainees say they do not pose a security risk. Asked whether there are other cases as stark as Odaini's, his attorney, Remes, said he was "certain of it."

"Why the government fights so tenaciously to keep men such as Mr. Odaini in prison unless and until the government sees fit to release them is the great mystery of this litigation, especially since President Obama took office," said Remes, who represents 14 Yemenis held at Guantanamo Bay. "They seem unable to admit they've ever made a mistake."

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