Yemeni Gitmo Detainees Now the Victims of Hysteria

Throughout 2009, the interagency task force President Obama established by executive order
on January 22, 2009, has been reviewing the cases of all the detainees
being held at Guantanamo in order to determine who should be prosecuted
and who should be released.

There are currently 198 prisoners still being held, 86 of whom -- or 43 percent -- are from Yemen.

In October, the Task Force reported that 78 prisoners had been cleared for release, including 27 Yemenis, and last month the total number of prisoners cleared had been revised upwards to 116, indicating that 40 to 45 Yemenis had been cleared (the administration did not provide exact figures this time around).

One of these men, Alla Ali Bin Ali Ahmed, a student seized in a
Pakistani guest house whose release had been ordered by a District
Court judge in May, after she granted his habeas corpus petition, was released in October, and six more men were released the week before Christmas.

Then, on Christmas Day, a Nigerian man named Umar Farouk
Abdulmutallab allegedly tried but failed to blow up a plane bound for
Detroit by setting off a bomb concealed in his underwear.

Initial reports suggested that Abdulmutallab had connections with an
al-Qaeda-inspired group in Yemen, which included prisoners released
from Guantanamo. And that was enough for critics of Obama's decision to
close the prison to demand that no more Yemenis should be released.

Although Obama's top counterterrorism adviser John Brennan mounted a solid defense of the administration's plans last weekend, on Tuesday the White House succumbed to continuing criticism and announced that no more transfers to Yemen would take place until some unspecified point in the future.

The problem with the argument that new information precludes their
release is that none of it has anything to do with men who have been
held in Guantanamo for the past eight years, entirely out of
circulation, and obviously with no links to any terrorist group that
has emerged in recent years. Moreover, the Obama administration has
been reviewing the cases of the Yemenis in Guantanamo with some
diligence, and had no intention of releasing men who might pose a
danger. It has also been coordinating its efforts with the Yemeni
government.

Furthermore, conclusions are being reached based, at least initially, on a poorly researched ABC News report,
which indicated that two former prisoners had assumed leadership
positions in al-Qaeda in the Arabian Peninsula (AQAP), the group that
claimed responsibility for the failed attack. However, these
connections have not been verified, and, moreover, one of the two
former prisoners identified by ABC News had actually handed himself in
to the Yemeni authorities in February last year, long before
Abdulmutallab arrived in Yemen.

Indeed, what's actually significant about these new developments is
how the nationality of these men and who was responsible for releasing
them in the first place have been overlooked in all the hysteria. The
fact that these men were Saudis, and not Yemenis, has, rather
shamefully, been ignored by the lawmakers and pundits calling for an
end to the Yemeni transfers. Even more damning is the fact that they --
and a handful of other released Saudis who are reportedly associated
with terrorism -- were released not by President Obama but by George W.
Bush, after military review boards in which representatives of the
intelligence services concluded that they should not be released,
because they still posed a threat to the U.S.

The inescapable conclusion from all this is that the refusal to
release any more Yemeni prisoners, whose cases have been studied in
depth by numerous government representatives, represents nothing less
than a capitulation to the most dismal kind of hysteria.

One of the most astonishing arguments in this entire debate has been
that Guantanamo inmates such as these Yemenis, even if they were
innocent to begin with, have been radicalized by their false
imprisonment and brutal treatment and are now dangers to the U.S. But
this kind of thinking must be vigorously countered.

Back in October, when the administration was attempting not to
release Alla Ali Bin Ali Ahmed -- despite a judge ordering his release
-- officials told the New York Times:
"Even if Mr. Ahmed was not dangerous in 2002 ... Guantanamo itself might
have radicalized him, exposing him to militants and embittering him
against the United States."

But as I argued at the time, only at Guantanamo can fear trump
justice to such an alarming degree. If the rationale for not releasing
any of the Yemenis from Guantanamo was extended to the U.S. prison
system, for instance, it would mean that no prisoner would ever be
released at the end of their sentence. It would also, of course, lead
to no prisoner ever being released from Guantanamo.

If prisoners are not going to be released, despite being cleared by Obama's own Task Force (and, in some cases, by the U.S. courts),
the entire system is revealed as a mockery of justice. And in its
capitulation to the unprincipled fearmongering following the failed
Christmas bomb plot, it seems to me that the Obama administration has
played into the hands of those whose only wish is to keep Guantanamo
open forever.

Background

Eighty-six of the remaining 198 prisoners
are Yemeni (that's 43 percent). In common with the rest of the
prisoners -- and in contrast to the Bush administration's claims that
they were "the worst of the worst" and were all "captured on the
battlefield" -- they were seized in a variety of locations.

Around 22 were seized in Afghanistan, another 35 were seized
crossing from Afghanistan into Pakistan in December 2001, 25 were
seized between February and September 2002 in house raids in Pakistan
(including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and
four were seized in other countries -- Egypt, Georgia, Iran and the
United Arab Emirates. Like two of the prisoners seized in Pakistan,
including bin al-Shibh, these four were held in a number of secret
prisons before their transfer to Guantanamo.

Ascertaining what these men were doing in Afghanistan and Pakistan
remains a challenge. Some, encouraged by fatwas issued in their
homeland, had traveled to Afghanistan to help the Taliban establish
what was described as a "pure Islamic state." This involved helping the
Taliban defeat their enemies (the Northern Alliance) in an inter-Muslim
civil war that began many years before the 9/11 attacks and had nothing
to do with al-Qaeda. Others, however, had traveled for other reasons:
to teach the Koran, or to provide humanitarian aid, and, in the cases
of those who had traveled to Pakistan, some were students or were
visiting in search of cheap medical treatment. Few are accused of any
direct involvement in terrorism.

Part of the problem is that the Bush administration deliberately
confused a war (against the Taliban) with the attempt to destroy
al-Qaeda (a terrorist organization), holding everyone seized as "enemy
combatants." Instead, those accused of aiding the Taliban should have
been held as prisoners of war, and protected by the Geneva Conventions,
and those accused of aiding al-Qaeda should have been held as criminal
suspects and put forward for federal court trials, as happened with
Ramzi Yousef, the original World Trade Center bomber, the 1998 African
embassy bombers, the shoe bomber Richard Reid, and the would-be 9/11
hijacker Zacarias Moussaoui.

It did not help that the majority of the prisoners (86 percent at
least) were seized not by US forces, but by their Afghan and Pakistani
allies, at a time when bounty payments, averaging $5,000 a head, were
widespread, as researchers at the Seton Hall Law School demonstrated in
2006, through an analysis of the Pentagon's own allegations.

Nor did it help that, despite the US military's intentions, none of the prisoners
received competent tribunals under Article 5 of the Geneva Conventions.
Held close to the time and place of capture, and used in every war from
Vietnam onwards, the tribunals were designed to allow prisoners whose
status was in doubt (because they were not wearing uniforms, for
example, or did not have a regular command structure) to call
witnesses, to establish whether they were combatants or civilians
caught by mistake. In the first Gulf War,
1,196 hearings were held, and 886 men were released. In Afghanistan,
however, the need for tribunals was dismissed by the administration,
with the result that, in the words
of Maj. Gen. Michael Dunlavey, the commander of Guantanamo in 2002, the
prison began filling up with "Mickey Mouse prisoners," who had no
involvement whatsoever with terrorism.