Briefing Paper on Guantanamo Transfers to Yemen

Thank you for the opportunity to brief the subcommittee on the problem of transfers of Yemeni detainees from Guantánamo Bay. Yemeni transfers have, since the Christmas Day bombing attempt and the rise of Al Qaeda in the Arabian Peninsula, become an area of considerable political rancor. The rancor is, in our judgment, unwarranted. As we shall explain, transfer policy towards Yemen has been a matter of institutional continuity between administrations, a matter in which policymakers face no good options, and a matter in which there is currently no dispute between the political parties. To put the matter simply, both the Bush Administration and the Obama Administration have been appropriately cautious about transferring detainees to Yemen. Republicans and Democrats and Congress and the administration all agree that conditions in Yemen will not permit the transfer of detainees to that country at this time. There are many aspects of detention policy that are genuinely in dispute. This is not one of them. This paper represents the views of three analysts who have considered transfer issues from a variety of different scholarly and governmental perspectives. Benjamin Wittes, a senior fellow at the Brookings Institution, is the author or editor of three books and numerous reports and papers on matters related to detention policy. Matthew Waxman, an associate professor at Columbia Law School, served as Deputy Assistant Secretary of Defense for Detainee Affairs from mid-2004 through 2005 and as a senior State Department official advising on detainee issues in 2006-2007. Robert Chesney, the Charles I. Francis Professor in Law at the University of Texas School of Law, has written extensively about detention and transfer issues and in 2009 served with the administration’s Detention Policy Task Force. In this briefing paper, we lay out, first, why Yemen has proven such an intractable problem in the disposition of Guantánamo cases; second, how both the Bush and Obama administrations cautiously explored a variety of options for the transfer of Yemeni detainees and why those options ultimately did not pan out; and, third, how this has left American policymakers with no viable options for the large-scale reduction of the Yemeni population of Guantánamo. Finally, we discuss why the difficulties associated with Yemeni transfers should not handcuff other transfer efforts. The Problem of Yemen What to do with Guantánamo’s large population of Yemeni detainees has proven exceptionally difficult for two successive administrations, both of which have treated the matter with great caution. Yemen is unique among the countries which contributed large numbers of detainees to the larger Guantánamo population. It has long been teetering on the edge of state failure. Unlike Saudi Arabia, it has never had a strong central government with which the United States could work to manage the threat posed by transferred detainees. Whatever one thinks of the effectiveness of the Saudi reintegration program—whose successes and failures are the subject of legitimate debate—the Saudi government has both significant policy instruments and substantial institutional resources to deploy in dealing with transferred detainees. The Yemeni government, even before the current crisis, has always lacked similar capacity.  Furthermore, it has proven to be a difficult negotiating partner, rarely presenting consistent positions on repatriation and behaving erratically with respect to detainee issues. Major jailbreaks by terrorists and militants, along with occasional Yemeni government releases of high-value al Qaida prisoners, also eroded the U.S. government’s confidence in Yemen’s commitment and capacity to deal with these issues effectively.[1] Moreover, unlike the other weak state that contributed large numbers of detainees to Guantánamo —Afghanistan—Yemen does not have large numbers of U.S. troops on the ground helping to build capacity to handle returned detainees. What’s more, it is difficult to imagine large numbers of Yemenis being resettled in third countries in Europe or elsewhere in an effort to place in them in locations where effective governments might take appropriate steps to deal with them. Unlike detainees who fear persecution at the hands of their home countries and on whom the United States can thus rely not to return to those countries voluntarily, Yemenis resettled in third countries might well pick up and head home—and most countries will not prevent this—thus frustrating the very objectives of such third-country resettlement. The result is that the executive branch institutionally has confronted in Yemen an unusually intractable problem that has resisted all of the persistent and creative efforts over a long period of time—by both the Bush administration and the Obama administration—to reduce the Guantánamo population. The Efforts of Two Administrations It has become fashionable to discuss transfer efforts in general—and those involving Yemen and Yemenis in particular—as reckless and hasty and done with inadequate attention to security concerns. While the question of recidivism is an important one, and there have been certain high-profile Saudi detainees who have migrated to Yemen and there reengaged, there has certainly been no stampede of precipitous transfers to Yemen. Indeed, the very slow and cautious pace of transfers to that country is precisely the reason that the problem of Guantánamo has become, over time, a predominantly Yemeni problem. According to the best publicly-available data we have been able to collect, the Bush Administration transferred only 14 detainees to Yemen between March of 2004 and November of 2008.[2] The Obama administration, meanwhile, has transferred only eight detainees to Yemen, two of whom it transferred under court order.[3] These numbers are dramatically lower than the number of detainees released to both Afghanistan and Saudi Arabia. The efforts of the Bush and Obama administrations with respect to Yemeni transfers have differed in some respects from one another, but these differences reflect changed circumstances more than different attitudes towards the problem of Yemen. And significantly, they have not produced substantially different outcomes. Rather, the overall approach has been remarkably similar and consistent—reflecting in both cases a great hesitancy about releasing large numbers of detainees to a country with so little control over its own affairs. Broadly speaking, the Bush administration was interested in large-scale repatriation opportunities as a principal means of reducing the Guantánamo population. The Bush administration specifically explored a number of options for bulk releases of Yemenis.[4] In particular, it spent a great deal of energy working with the Yemeni government on creating a program modeled on the Saudi reintegration program—a program that was itself modeled on an earlier Yemeni program.[5] For the reasons described above, however, the bulk approach required conditions that Yemen did not present. So the Bush administration selectively released only 14 detainees to Yemen over the very years in which it removed hundreds of other detainees from Guantánamo—more than 530 of the nearly 800 who were ever held at the facility. Around the time that the Obama administration took office, efforts to remove Yemeni detainees en masse expanded to include the possibility of sending some portion of the Yemeni population to Saudi Arabia to go through the Saudi reintegration program. The Obama administration spent a good deal of energy attempting to make this option viable.[6] By the fall of 2009, however, it had become clear that it would not pan out. What’s more, the situation in Yemen was not improving, and the U.S. government was losing a considerable number of Guantánamo habeas cases—raising the possibility of large numbers of Yemenis winning habeas cases and thus being ordered released by courts. Indeed, the administration clearly contemplated the possibility of being directed to release considerable numbers of Yemeni detainees as a result of habeas court judgments. More recently, the government’s victories in habeas cases in the D.C. Circuit Court of Appeals have dramatically altered this landscape, making the status quo—in other words, long-term detention of the Yemeni population until conditions in Yemen improve—much more realistic to imagine sustaining. But at the time, it would have been unwise to bet on this change in the litigation environment. The Obama administration thus faced a delicate pincer action, being caught between, on the one hand, litigation pressures to release potentially large numbers of Yemeni detainees and, on the other hand, conditions in the country that still would not, in the administration’s judgment, safely permit bulk transfers. The administration responded by identifying three groups of Yemenis at Guantánamo. The first group included those who could not be safely transferred irrespective of conditions. The second included those who, in the words of the Guantanamo review task force, met minimal conditions for transfer and who might be transferred if “(1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.” The third group included those who met the conditions for transfer and could be transferred at any time “subject to appropriate security measures”—which the Guantánamo task force made clear “did not require immediate implementation.” The task force report emphasizes that,

by making each transfer decision contingent on the implementation of appropriate security measures, the review participants allowed for necessary flexibility in the timing of these transfers. Under these transfer decisions, detainees would be returned to Yemen only at a time, and only under conditions, deemed appropriate from a security perspective.

As a practical matter, it is reasonable to assume that perceived litigation risk played a significant role in whether detainees were placed in the second or third groups. Those slated for more immediate transfer tended to be those whom the administration believed to have strong habeas cases. Those slated for conditional transfer—that is, transfer when conditions improved—tended to be those whose longer-term detentions the administration believed the courts would tolerate. The influence of the litigation pressure is explicit in the Guantánamo task force’s report with respect to those detainees the Obama administration has actually transferred to Yemen. Indeed, no detainee has been transferred to Yemen by the Obama administration except where the administration has either lost a habeas case or, to one degree or another, anticipated the possibility of losing it. The task force described the first seven releases as follows:

To date, only seven of the 36 Yemeni detainees approved for transfer have been transferred to Yemen. One was transferred in September 2009 pursuant to a court order, and six were transferred in December 2009. The six who were repatriated in December 2009 were selected by the unanimous agreement of high-level officials in the agencies named in the Executive Order, after further individualized reviews of the detainees, including consideration of threat-related information, the evidence against the detainees, and the government’s ability to successfully defend the lawfulness of their detentions in court (emphasis added).

The one additional detainee transferred since the task force report was also transferred pursuant to court order. Finally, all Yemeni repatriation efforts effectively came to an end at the time of the Christmas bombing attempt, which provoked the current moratorium on transfers to Yemen. With conditions in Yemen rapidly deteriorating, there is no realistic chance of that moratorium’s being lifted in the near term; only court-ordered transfers and releases are therefore likely for the foreseeable future. In short, both the Bush- and Obama-era transfers reflect great caution about the security situation on the ground. Both administrations sought to reduce the Yemeni population of Guantánamo while remaining sensitive to the reality of the unstable security situation in Yemen. Both explored options for doing so. Both ultimately assessed that security concerns outweighed the ambitions to transfer detainees out of Guantánamo. Yemen Transfers Today To put the matter simply, there is no likelihood today of the executive branch releasing dangerous detainees to Yemen. This is not because of legislative transfer restrictions. It is, rather, because the executive branch—under the Bush Administration and under the Obama Administration alike—has never let the desire to remove Yemenis from Guantánamo blind it to the reality of dealing with a weak state with limited capacity and willingness to mitigate the threat posed by released detainees. Particularly now, the situation in Yemen simply offers no serious short- or medium-term possibility of a permissive environment for repatriations of significant numbers of detainees, and the executive branch knows this. The present risk, in our judgment, lies, rather, in the other direction. It is that overbroad legislative transfer restrictions intended to prevent releases of Yemenis—who, with or without such restrictions, are not going to leave Guantánamo—are encumbering reasonable repatriation and resettlement efforts for detainees from countries that do not pose challenges remotely comparable to those presented by Yemen. There are a number of current opportunities for the resettlement of Guantánamo detainees, opportunities which the legislative restrictions in place tend to frustrate. These restrictions are maintained largely out of fear of the situation in Yemen, but the chief effect is not felt by the Yemeni detainees. It is felt by others who, unlike the Yemenis, might plausibly be removed from U.S. custody to other countries where they would pose little risk of reengagement with the enemy. The Yemeni detainees are going to wait—perhaps for a long time. They will wait either until a very unstable country stabilizes or perhaps until the United States and Saudi Arabia make some arrangement for transfers to the Saudi reintegration program—at least for those detainees with family in that country. This is a very difficult situation. Some of the Yemeni detainees were merely low-level fighters who—had they been from other countries—would have gone home long ago. Their situation may be a regrettable necessity. Generalizing the Yemen predicament to the rest of the Guantánamo population, however, is not a necessity. It is a mistake.

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[1] See Mark Mazzetti, U.S. Is Intensifying a Secret Campaign of Yemen Airstrikes, N.Y. Times., June 8, 2011, available at http://www.nytimes.com/2011/06/09/world/middleeast/09intel.html?_r=1&scp=1&sq=harithi&st=cse (describing Yemen’s capture, conviction, and release of an al Qaeda militant killed by a U.S. airstrike last week); Michael Isikoff, A Slap in the Face: Yemen’s Handling of Cole Bomber Stuns Bush Antiterror Chief, Newsweek.com, Oct. 31, 2007, available at http://www.newsweek.com/2007/10/30/a-slap-in-the-face.html; Mark Trevelyan, Jailbreak in Yemen Stirs Concerns Abroad, Boston Globe, Feb. 10, 2006, available at http://www.boston.com/news/world/middleeast/articles/2006/02/10/jailbreak_in_yemen_stirs_concern_abroad/; Gregory Johnson, Securing Yemen’s Cooperation in the Second Phase of the War on al-Qa’ida, CTC Sentinel, Dec. 2007, available at http://www.ctc.usma.edu/wp-content/uploads/2010/06/Vol1Iss1-Art8.pdf. [2]This figure has been widely cited in press articles. See, for example, Charlie Savage, “6 Detainees are Returned to Yemen,” New York Times, December 20, 2009, available at http://www.nytimes.com/2009/12/20/world/americas/20gitmo.html. With the exception of Salim Hamdan, who was transferred after the period it covers, the 14 detainees transferred to Yemen are identified in a declassified Defense Department list of all transfers from Guantánamo. The list is available at http://www.dod.mil/pubs/foi/detainees/09-F-0031_doc1.pdf. [3]A discussion of the first seven of these transfers appears in the final report of the Guantánamo  Review Task Force on page 18 and is quoted below. One additional detainee, Mohammed Odaini, was transferred in July 2010 after he prevailed in his habeas case. See, for example, Charlie Savage, “Rulings Raise Doubts on Policy on Transfer of Yeminis,” New York Times, July 8, 2010, available at http://www.nytimes.com/2010/07/09/us/09gitmo.html?scp=1&sq=Mohammed+Odaini&st=cse&pagewanted=print. One additional Yemeni detainee has been transferred from Guantánamo during the Obama administration, though this particular detainee was resettled in a third country. [4]This was no secret. Indeed, the New York Times reported as far back as 2005 that the Pentagon was seeking to implement “a plan to cut by more than half the population at its detention facility in Guantánamo Bay, Cuba, in part by transferring hundreds of suspected terrorists to prisons in Saudi Arabia, Afghanistan and Yemen.” See Douglas Jehl, “Pentagon Seeks to Transfer More Detainees from Base in Cuba,” New York Times, March 11, 2005, available at http://www.nytimes.com/2005/03/11/politics/11detain.html. Later that same year, the State Department announced the initiative publicly; one of the present authors, then in government, said in an interview that the administration was seeking to “shift the burden [of detention] on to our coalition partners. We, the US, don’t want to be the world’s jailer.” See Tim Reid, “Guantánamo Inmates Face Transfer to Native Jails,” The Times, August 6, 2005, available at http://www.timesonline.co.uk/tol/news/world/us_and_americas/article552128.ece. [5]These efforts too were well-publicized. See, for example, Shashank Bengali, “Obama’s Biggest Guantánamo  Dilemma May Lie in Yemen,” McClatchy Newspapers, November 13, 2008, available at http://www.mcclatchydc.com/2008/11/13/55827/obamas-biggest-Guantánamo -dilemma.html. [6]The Obama administration discussed these efforts publicly. See, for example, Lara Jakes, “U.S. Hopeful on Yemeni Detainee Deal,” Associated Press, May 9, 2009, available at http://www.guardian.co.uk/world/feedarticle/8492131.