Published by The Lawfare Institute
in Cooperation With
In another challenge to President Barack Obama's efforts to close the Guantanamo Bay prison, a ban on transferring detainees to Yemen has been effectively pushed back into place because of security concerns in the volatile Middle Eastern nation, administration officials say. While Obama approved sending detainees back to Yemen nearly two years ago, his administration has yet to use that authority. And officials say deep concerns about the threat posed by a Yemeni-based al-Qaida offshoot have removed that option for the foreseeable future, although that could change if conditions improve. The officials described the stance on condition of anonymity without authority to speak on the record. Obama insisted in his State of the Union address Tuesday that he will not relent in his determination to close Guantanamo before he leaves office, and the administration is working on agreements with third countries willing to take Yemenis who are clear to leave the U.S. prison in Cuba. Nearly two-thirds of the remaining 122 detainees are from Yemen, including 47 of the 54 who have been approved for transfer.The question is what this means for GTMO transfer policy---as practiced. On that subject, readers will recall a forehead-slappingly bad proposal, put forth recently by Senator Kelly Ayotte and others, to greatly restrict the executive branch's ability to offload Guantanamo detainees. One of the would-be law's odder features is a block on all GTMO transfers to Yemen. The provision very much has a solution-in-search-of-a-problem quality to it: No detainee has been sent from GTMO to Yemen since 2009, bar one Yemeni national who prevailed before a habeas judge. Of course, shortly thereafter, in response to Abdulmutallab's attempted airline bombing, the White House unilaterally imposed its own Yemen "ban," only to rescind it in 2013 and adopt a "case by case" approach to potential Yemen transfers from GTMO. Yet that rhetorical shifting of gears didn't lead to a raft of Yemeni repatriations or transfers. Indeed, it didn't lead to any, in part because of the deteriorating security situation in Yemen and the Hadi regime's tenuous grip on power. The executive branch has monitored that closely, and thus proceeded with caution---by moving Yemeni nationals and other detainees at GTMO to places other than Yemen. (As for non-GTMO detainees, to my knowledge, only two Yemenis have been repatriated---from the United States' facility at Parwan.) Despite all this, Senator Ayotte and company would insist on a statutory prohibition on Yemen transfers---evidently on the theory that the blinkered executive branch might overlook the discouraging facts on the ground, and recklessly whisk detainees to Yemen en masse. If true, then today's news ought to take that reality-ignoring scenario off the table, at least for the foreseeable future. And maybe that will give Senator Ayotte pause, and encourage her to rethink---withdraw---her unwise bill.