U.S. Worries About Looming Habaes Wins for Gitmo's Detainees

If you're interested at all in the future of detention policy, you might to make time to read a  scathing and now declassified opinion of Judge Kennedy on the case of the Yemeni detainee (Odaini), available on line.  If the re-engagement rate would seem to crack the myth of the left that all  on on parts of the left that most of the remaining detainees are innocents, habeas corpus losses such as Odaini's demolish the myth of the right that (nearly) all detainees are cutthroat super terrorists. Odaini may -- and I emphasize may -- have once transited through a house owned by Abu Zubaydah.  And that's it. That's all the government has on him. And for that, the government wants him locked up forever.

The Gitmo detainees span a range, and a commensurate range of policy options to deal with them, from trial and detention to resettlement and repatriation, is going to be what solves the problem and closes the prison in the end.

This is Obama's policy on closing Gitmo: it is messy, and it is difficult to swallow, but it fits the reality of history.

The administration isn't helping matters by continuing to over-argue cases like Odaini's. At times, as Kennedy implies, the government brief reads like a parody of illogic.

Respondents also argue that Odaini's assertion that he was a student is a cover story the occupants of lssa House had agreed to use. Only by refusing to deviate from a predetermined conclusion could this explanation ofconsistent statements from so many men over so many years seem at all reasonable.

Why is the government making dumb arguments? Because -- and this is the truth -- is hasn't figured out what it can do, or will do, with the Yemeni yet. That's no excuse, but it is what it is.

Notably, the government also isn't helping matters by only sparingly making the public case for its prerogatives. This is a failure of political will.

The Yemeni detainees are still an acute problem. Obama secretly banned repatriations back to Yemen after the Christmas Day incident, and now judges are starting to grant habeas petitions. The U.S. government privately expects that more writs will be issued in the coming months. What can be done?

The government can ignore the judges or try to send these men to the Bagram detention facility--options that are impossible and quasi-legal. It can repatriate them to Yemen, which has downsides, like the potential for re-radicalization and the potential that the Yemeni government doesn't treat them well, but which even Sens. McCain and Graham (in a letter to the administration) recognized was a legitimate course of action when (and only when) a Yemeni detainee wins his habeas case.

It can also try to find a third country to take them, but given that they are ordered released by the courts, that works only if they want to go to a third country.  There are downsides as well, because it would be legally difficult to prevent them from returning to Yemen anyway.  It's ugly, and if you don't like those options, well, at least you can vent that the Bush administration kept these people locked up for eight+ years for no good reason (in some cases).