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Yemenis imprisoned at Guantanamo are cleared for transfer home: Why is it not happening?

News Yemen
By Martha Rayner*
May 11, 2005

There are 384 men imprisoned at Guantanamo–over one quarter of them are Yemenis. Of the approximately 100 Yemenis locked up at Guantanamo, only a mere eight have been sent home. Up until recently–just this past December--when a group of six Yemenis were transferred home, the United States and Yemen were at a diplomatic standstill over repatriation because they could not come to an agreement regarding the conditions of transfer. One point of conflict was the United States’ request for assurances that those transferred toYemen would not be tortured. Yemen would not give assurances over and above reference to the prohibition of torture under Yemen law. With the release of six Yemenis last December, I had hoped the diplomatic logjam had been resolved, but the fact that no additional Yemeni men have been transferred in almost 5 months dashes my optimism and raises the question: why haven’t more Yemenis been sent home?
Through my work in representing two men from Yemen and working with American lawyers representing other Yemenis, I know of at least 7 Yemenis who have been approved by the United States to leave Guantanamo–there are likely many more who remain uncounted because they do not have lawyers. At least one of those men, a client of Fordham University School of Law’s International Justice Clinic, has been approved by the U.S. Government to leave Guantanamo for over one year. How can any jailer continue to incarcerate a young man in the the harsh conditions that exist at Guantanamo so long after even the jailer has determined he should be released. How can the Yemeni government sit by and do nothing when one of their citizens languishes without any justification in a foreign prison?
My client, Mohammed Ali Nasser Mohammed, was barely eighteen when he was turned over to the United States military soon after the U.S. invasion of Afghanistan–he is already deep into his sixth year of imprisonment. A year ago, Ali was informed by the U.S. military that he was going to be released from Guantanamo and was“processed” for transfer. At the last minute, Ali learned that the U.S. Department of Defense had designated him a Saudi and he was destined for Saudi Arabia. Since Mr. Mohammed is not a Saudi citizen, the Saudi government refused to accept him. On May 18, 2006 sixteen men were slated to leave Guantanamo, but only fifteen made the flight to Riyadh.
Ali is a Yemeni citizen. Because he was born in Saudi Arabia, however, the U.S. military designated him a Saudi national. The military imposed the American way of doing things on my client: any person born in the United States, is a U.S. citizen. The designation of citizenship, however, works quite differently in the Gulf states. Though Ali was born in the Kingdom of Saudi Arabia, he was born to Yemeni parents and as a young child moved to Yemen and has lived there ever since. This young man is unquestionably a Yemeni national and citizen.
The next steps should have happened rapidly: correct Ali’s citizenship designation and arrange for transfer to his true home country. Instead, nothing has happened; Ali remains designated a Saudi by the U.S. military. My inquiries of the U.S. government as to why this mistake has not been cleared up are met with a stone wall–my government simply will not talk to me about what if anything is being done to rectify this injustice. And due to President Bush and Congress’ short sighted policies and laws, Ali case cannot be reviewed by a neutral, independent court with power to order justice. The Yemen government claims it will accept for transfer any man confirmed to be Yemeni, yet Yemen maintains that there is nothing it can do on Ali’s behalf.
In March, U.S. Secretary of Defense, Robert Gates, stated unequivocally that the United States was working to repatriate men held at Guantanamo, but claimed “their home countries don’t want them.” Yet, how is it that Ali’s concrete and contained problem has not been resolved? Why is this young man still in a prison thousands of miles away from home, cut off from the world, closing in on six years? Together, Yemen and the United States can readily establish Ali’s nationality and send him home.
I and my colleagues are traveling to Yemen at the end of this month. We look forward to meeting with government officials in Sana’a and working together to resolve Ali’s problem. I invite Yemen to actively focus on this dire situation as well as the plight of other Yemenis who have been cleared for release, but remain incarcerated at Guantanamo. Yemen must do all it can to assure its citizens are not left to languish in Guantanamo while so very many others have been and continue to be released.

* Martha Rayner is an Associate Clinical Professor of Law, Fordham University School of Law, New York City, and teaches the International Justice Clinic which focuses on the representation of men imprisoned at Guantanamo Bay, Cuba, by the United States Military.

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