Sunday, October 4, 2009

Obama's Challenges at Guantanamo Bay

The New York Times today ran an excellent story by Scott Shane reviewing the challenges that the Obama administration faces in closing Guantanamo Bay and transferring or otherwise dealing with the remaining detainees, especially the Yemenis.

The story highlights the case of Alla Ali Bin Ali Ahmed, a Yemeni detainee ordered released earlier this year, on May 11, in his habeas case by Judge Gladys Kessler (D.D.C.).  After exploring options, the government finally complied with Judge Kessler's order and transferred Mr. Ahmed back to Yemen just last weekend.

The problem with the Yemenis is by now is familiar--it's very similar to the problem the government faced with the Uighurs (who were eventually transferred out).  The government doesn't want to transfer them back to Yemen, for fear that they would fall in with Al Qaeda.  (The government didn't want to transfer the Uighurs back to China, for fear that they would be persecuted or killed.)  But the government can't easily find a third country to take them; and transfer to, or trial in, the U.S. is a political non-starter.  Trial in the U.S. is also a legal non-starter, as evidence is often thin or obtained by techniques that would make it inadmissible in court.  Just like the Uighurs, some of the Yemenis are considered dangerous by the government only because of their treatment during detention (and not because of their alleged terrorist activities or association with terrorists).

Judge Kessler's frustration with the government's delays in the Ahmed case is nothing new, either.  We've seen even greater frustration by Judge Huvelle (D.D.C.) with the government's shenanigans in the Jawad case.  Like Ahmed, the government eventually transferred Jawad back home.

The Obama administration might have had an easier time with detainees if they received proper treatment and appropriate opportunities to challenge their detention at Guantanamo, or Article III trials in the U.S., from the beginning.

SDS

http://lawprofessors.typepad.com/conlaw/2009/10/obamas-challenges-at-guantanamo-bay.html

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