Imagine if you were imprisoned for seven years without charge or trial, and then a judge ruled that the government’s case against you consisted solely of unreliable allegations made by other prisoners (who were tortured, coerced, bribed, or suffering from mental health issues) and a "mosaic" of intelligence, purporting to rise to the level of evidence (which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association, and insupportable suppositions), and stated that the government "should take all necessary diplomatic steps to facilitate" your release.
Now imagine that, instead of being freed, you continued to be held because the government refused to send you home, stating that it would not release you unless you first passed through a rehabilitation center in your home country, or, preferably, in a third country.
You would, I think, be pretty depressed about your situation and would conclude that the United States’ much-vaunted justice system was a farce. And yet this is exactly the problem that currently faces Alla Ali Bin Ali Ahmed, a Yemeni prisoner in Guantánamo, whose habeas corpus petition was granted in May by Judge Gladys Kessler.
On Sunday, the Associated Press reported that, although "The government’s deadline for appealing Ahmed’s release has run out," he continues to be held because of the government’s refusal to send him home without first putting him through a rehabilitation center, preferably in Saudi Arabia, which, unlike its impoverished neighbor, has established rehabilitation centers that have processed thousands of former and would-be jihadists in the last few years, including dozens of Saudi prisoners repatriated from Guantánamo (some of whom, it should be noted, were not in Afghanistan to fight for the Taliban, but had visited as missionaries or charity workers).
In the AP’s report, the U.S. government’s refusal to free Ali Ahmed outright was dressed up as part of a wider policy on the government’s part to put an unspecified number of the remaining 100 or so Yemeni prisoners, "who officials say probably will be freed," through a rehabilitation center "before they are released to make sure they pose no threat to Americans."
However, in the case of Ali Ahmed and two other Yemeni prisoners – Yasim Basardah, whose habeas petition was granted in March, and Ayman Batarfi, a doctor whose release was approved by the government’s own Detention Policy Task Force at the same time – this makes no sense, as either the courts or the government itself have already concluded that they "pose no threat to Americans."
These cases are not the only examples of inexplicable obstruction on the part of the administration. Although 15 other prisoners cleared by the courts – 13 Uighurs; Sabir Lahmar, an Algerian; and Abdul Rahim al-Ginco, a Syrian – are awaiting new homes, because of fears that they will face torture or worse if returned to their homelands, the government has also approved "more than 50" other prisoners for release, after their cases were reviewed by the inter-departmental Detention Policy Task Force (established by executive order on Obama’s second day in office), which, as ABC News explained, has, for the last six months, involved 65 representatives "from agencies like the FBI, Pentagon, the CIA, and attorneys from the Justice Department" meeting up once a week "on a secure floor within a secure facility to discuss the review."
Sadly, in a demonstration of the executive secrecy that was such a hallmark of the Bush administration, officials in the Obama administration have not revealed the identities of any of these men (other than Ayman Batarfi, Binyam Mohamed, the British resident who was hastily released in February to avoid a transatlantic torture scandal, and Umar Abdulayev, a Tajik, cleared in June, who was seized by opportunistic Pakistani intelligence agents from a refugee camp). But it seems, from the limited information made available – rumors that three Tunisians will be transferred to Italy and that some Tunisians and Algerians will be rehoused in Spain, and the recent news that Belgium will take some prisoners and Ireland will accept two Uzbeks – that the decisions on whom to release correspond broadly with those made by military review boards at Guantánamo under the Bush administration.
Although hundreds of the 544 prisoners freed from Guantánamo were released after military review boards concluded that they no longer posed a threat to the United States and/or no longer had ongoing intelligence value, 58 of these prisoners were still held when George W. Bush left office, even though some had been approved for release in 2006. Excluding the Uighurs (four of whom were finally released in Bermuda in June) and three Saudis released in the same month (see here and here), this leaves a total of 38 prisoners still at Guantánamo whose transfer from Guantánamo was approved by the Bush administration.
Twenty of these men – five Algerians, an Egyptian, a Libyan, eight Tunisians, four Uzbeks, and Umar Abdulayev, who was cleared for release under George W. Bush before this decision was repeated by Obama’s Task Force – could not be repatriated by the Bush administration because of fears that they would be tortured on their return, and three are Palestinians, and are therefore effectively stateless, as the Israeli government has no desire to facilitate their return.
However, there appears to be no good reason why the remaining 15 men could not be repatriated tomorrow. Three are Saudis and the other 12 are Yemenis, and, just to reiterate, in case anyone missed it the first time round, some of these men were approved for transfer from Guantánamo over three years ago.
I don’t mean to complain unnecessarily, but when the government has a genuine problem finding homes for at least 35 prisoners cleared for release by the Bush administration, by the U.S. courts, or by its own Detention Policy Task Force, it seems inexplicable that 18 others – also cleared for release by either the Bush administration, the courts, or Obama’s Task Force – cannot simply be flown home tomorrow, bringing to an end this farcical situation in which, as my "Hotel California" analogy was meant to signify, prisoners who do not face ill-treatment on their return to their homelands are still held no matter how many times their release is approved by various representatives of the U.S. government.