Finally! 48 days after a District Court judge ordered the release of Mohammed Hassan Odaini, a Yemeni prisoner in Guantánamo, the Obama administration has sent him home.
Odaini’s case had become an embarrassment for the administration, which had been obliged to concede that it had no basis on which to appeal the judge’s decision. As an official explained to the Washington Post on June 19, it would be “unconscionable” to appeal Odaini’s case. “This is a bad case to argue,” the official stated. “There is nothing there. The bottom line is: We don’t have anything on this kid. The judge wants a progress report by June 25th. We have to be able to report something other than we are thinking about it.”
Alarmingly, one of the administration officials who spoke to the Washington Post also stated that the administration was prepared to release him because senior officials were “comfortable” with making an exception for him “because of the guy’s background, his family and where he comes from in Yemen,” thereby admitting that the perception of a prisoner’s family background is now more important than whether he is innocent or not.
In order to release Odaini, the administration had to break a moratorium on repatriating any Yemeni prisoners, which was introduced by President Obama in January, in response to a wave of hysteria following the revelation that the would-be Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had been recruited in Yemen.
Implicit in the moratorium was the unacceptable notion that all Yemenis were potential terrorists, but the President chose to ignore this so as not to make his life uncomfortable, and, in doing so, also ignored the fact that some Yemenis were going to win their habeas petitions while the moratorium was in place. If he had any doubt about this, he need only have consulted the final report of his own Guantánamo Review Task Force, which had concluded that, of the 97 Yemenis still held, 59 should be released.
Obama’s indifference paved the way for the devastating ruling on May 26, when Judge Henry H. Kennedy Jr. revealed not only that Odaini had been cleared for release by the Bush administration, and by President Obama’s Guantánamo Review Task Force, but also that, since his arrival in Guantánamo in June 2002, interrogators and the prison authorities had repeatedly approved his release. This was so intolerable that Judge Kennedy forcefully ordered Odaini’s release and concluded his ruling by stating:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al-Qaeda. Consequently, his detention is not authorized by the AUMF [the Authorization of the Use of Military Force, passed by Congress the week after the 9/11 attacks, and used to justify the detentions at Guantánamo]. The Court therefore emphatically concludes that Odaini’s motion must be granted.
What makes this story all the more depressing, as Charlie Savage explained in the New York Times last week, is that the administration already knew that it would lose the case. As Savage wrote, “The suspension on transfers meant that habeas corpus lawsuits that had been frozen since the detainees were due to be released anyway started to move forward, putting the Justice Department in the position of fighting to keep the detainees imprisoned.” As I added in an article yesterday, “In other words, the Justice Department is arguing in court that the administration should be allowed to continue holding men that it has already conceded it has no reason to hold.”
Another depressing realization is that Odaini was not released until now not just because of inertia on the part of the administration, but because, as law professor (and former Guantánamo military defense attorney) Lt. Col. David Frakt has explained, for 15 days before his release, Odaini was held “in the status of ‘Congressional prisoner,’ a status for which there is no Constitutional authority,” while the administration fretted about whether it could break its appalling moratorium on just this one occasion.
Lt. Col. Frakt was referring to a law, passed last summer, which requires the administration to give Congress 15 days’ notice before releasing anyone from Guantánamo, and his full explanation of why this is unconstitutional, which he illustrated with reference to his own client, Mohammed Jawad, who was held for 22 days before being released last summer, after winning his habeas petition, is revealing:
I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.
[F]or those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.
For Mohammed Hassan Odaini, his vulnerability to the whims of an unprincipled administration and a constitutionally depraved Congress is now over, but others are not so fortunate. In May, Congress proposed to extend the period in which it can hold men as “Congressional prisoners” from 15 to 30 days, and the administration has been true to its word regarding the moratorium. When administration officials spoke to the Washington Post three weeks ago, one of them stressed that it was just a one-off exception, and that the moratorium was still in place. “What isn’t being considered is lifting, in a blanket fashion, the moratorium on detainee transfers to Yemen,” he said.
This is in spite of the fact that, as the officials also explained, President Obama “may come under further pressure to quickly release Yemenis besides Odaini,” because “[a]s many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention.” The official added, “There is a group of Yemenis who are going to win their habeas cases. Some of them will not be as clear as this case, but some will be, and that poses a real dilemma.”
One of those men may be Hussein Almerfedi, who won his habeas petition last week, and others will doubtless follow, given that the Justice Department is now pursuing cases that it knows it will lose. However, in releasing Odaini — and Odaini alone — the administration has just demonstrated that it will put off thinking about this dilemma until, as with Mohammed Hassan Odaini, it has no choice.