WASHINGTON — Nine days before Christmas, a federal judge ordered Saeed Hatim to be released from the Guantanamo Bay prison after U.S. government lawyers failed to prove that the 33-year-old Yemeni man was linked to terrorism.
Then came the thwarted Christmas Day airline bombing, and President Barack Obama's decision to suspend transfers of detainees to Yemen, where the airline suspect, Umar Farouk Abdulmutallab, allegedly plotted his attack.
Imprisoned since 2002, Hatim now finds himself in a legal netherworld: a judge has ruled that he's innocent and should be freed, but Obama says he can't go home, and Congress prohibits releasing detainees into the U.S.
To legal experts, the case underscores the growing problems facing the Obama administration as it tries to empty the Guantanamo prison, which Obama has repeatedly described as a rallying cry for al Qaida and vowed to close.
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Critics say that Obama is bowing to fears stirred up by the failed Christmas Day attack and that his decision presumes that all the Yemeni prisoners are dangerous. However, three Yemenis, including Hatim, have been ordered freed by federal judges, and at least 27 others have been cleared for release by a U.S. government task force.
"The problem here is that the White House . . . is painting all the Yemenis at Guantanamo with the same brush," said Marc Falkoff, a Northern Illinois University College of Law professor who represents Hatim. "It's a position that lacks all nuance."
Approximately 90 Yemenis constitute nearly half of the 198 men still imprisoned without charge at the U.S. Navy base at Guantanamo Bay, Cuba. While nearly all prisoners from countries such as Afghanistan, Pakistan and Saudi Arabia have been repatriated, only about 20 Yemenis have been sent home because U.S. officials have struggled to win assurances from Yemen that it will closely monitor the men once they're released.
Upon taking office, Obama signed an executive order to close Guantanamo by this month, a deadline he's since acknowledged he'll miss. The Yemenis remain one of the biggest obstacles.
Clint Williamson, a former ambassador-at-large for war crimes issues who supervised detainee transfers during both the Bush and Obama administrations, said that most low-risk detainees have been repatriated. That group would've included many more Yemenis if the security situation in their country had been more stable.
"Some of them are (dangerous), but a lot of them are not," Williamson said. "With Yemen, since it was so difficult to transfer the prisoners, you still have this wide range of people going from very low risk to high risk."
At least one Yemeni is thought to have gone from Guantanamo to al Qaida. Hani Abdo Shaalan, who was repatriated in 2007, was killed in a Dec. 17 raid by Yemeni forces along with three other suspected militants who were plotting attacks on Western targets, according to a senior Yemeni government official who requested anonymity because he wasn't authorized to discuss a military operation. The account couldn't be independently verified.
Court documents say that Hatim was captured in November 2001 near the Pakistan-Afghanistan border. Aiming to fight alongside rebels in Chechnya, Hatim acknowledged training at the al Farouq paramilitary camp in Afghanistan before the Sept. 11 terrorist attacks, although he denied knowing the camp had ties to al Qaida and said he fled after about three weeks.
Hatim said, however, that he made those statements after being tortured and abused in the custody of American forces in Kandahar, Afghanistan, a contention that government lawyers didn't dispute.
Another detainee who testified against Hatim was determined to have psychological problems and judges described his statements as unreliable.
On Dec. 16, U.S. district Judge Ricardo Urbina ruled that the government had failed to prove that Hatim was an al Qaida member and had "offered the court an inherently flawed justification for detention."
Two other Yemenis successfully challenged their detentions in court, bringing to 32 the number of Guantanamo prisoners whom judges have ordered freed. The U.S. government has appealed the rulings in those two cases.
Justice Department spokesman Dean Boyd said that government lawyers still had time to appeal the Hatim ruling, although he declined to say whether they planned do so.
Rights groups argue that delaying the release of these detainees could be unconstitutional.
"Yielding to political pressures by continuing to imprison individuals who the president's own task force has cleared for release or whom the courts have found no basis to detain does not serve America's interests and mocks its commitment to the rule of law," said Jonathan Hafetz, a staff attorney with the American Civil Liberties Union.
White House officials have defended the decision on the grounds of security concerns in Yemen, a poor, rugged nation of 23 million along Saudi Arabia's southern border where religious and tribal leaders, not the government, hold the most sway.
Days before the Christmas incident, in which Abdulmutallab, a 23-year-old Nigerian who allegedly was trained in Yemen, tried to ignite a bomb aboard a Northwest Airlines flight from Amsterdam to Detroit, the Obama administration released six detainees into Yemeni custody.
U.S. officials said they were confident in the security measures to be imposed by Yemeni authorities. Yemeni rights activists told McClatchy, however, that the government released all six after they or their relatives signed agreements saying that they wouldn't participate in armed action.
"All of them are with their families," said Radhia Khairan, a spokeswoman for Hood, a Yemeni rights group that's contacted some of the ex-prisoners.
Some experts speculated that the White House would ship some Yemenis to a proposed new detention facility in Thomson, Ill., and administration officials have said they're considering asking Congress to change the law to allow them to do so. Current law prohibits transferring detainees into the U.S. if they're not going to be prosecuted, or releasing them here.
Matthew Waxman, a Columbia University law professor who served as an assistant defense secretary for detainee affairs in the Bush administration, said that Obama wouldn't be able to empty Guantanamo anytime soon.
"The administration doesn't want to send detainees to Yemen, and it doesn't want to hold large numbers of them detention without trial, and it isn't planning to prosecute the vast majority of Yemenis, and yet it still says it plans to close Guantanamo quickly," Waxman said. "Something there has to give."
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