White House and Justice Department lawyers are bracing for a flood of new court battles as a result of last week's historic Supreme Court ruling, which granted Guantánamo Bay detainees the right to seek their freedom in federal court. But a more daunting problem lurks down the road: what happens if the courts actually do set them free? The largest block of Gitmo prisoners—nearly 100 of the remaining 270—hail from Yemen, a country that so far has resisted taking back detainees because of U.S. demands that they be put on trial back home (or, at least, that the Yemenis pledge to keep a close eye on them). "Of course, we want our citizens back," says Abdulwahab al-Hajjri, Yemen's ambassador to the United States. "But [the United States] has these conditions, so this is taking time." Other prisoners come from countries that allegedly engage in torture, such as Syria, Libya and China. Attempts to find countries in Europe willing to take them have hit a brick wall. "The most vexing problem," says one senior administration official, who asked not to be identified discussing diplomatic matters, "is nobody wants them."
One example is Suleman Al Nahdi, a Yemeni who's been in Gitmo for more than six years. In 2004, a special military tribunal declared him an "enemy combatant" and "a member of or affiliated with Al Qaeda"—a conclusion based on classified evidence that Al Nahdi never saw. (Last week's court ruling found such hearings unconstitutional.) Earlier this year, though, the U.S. military changed its mind, telling Al Nahdi he was "cleared for release." His current lawyer, Rick Murphy, says Al Nahdi was thrilled when he got the news in February. But he still hasn't been let go and is now so disenchanted he refuses to meet with his attorneys.
The Bush administration is especially apprehensive about returning detainees to Yemen because of a massive jailbreak two years ago in which 13 Qaeda operatives escaped, including Jamal al-Badawi, who was indicted for the USS Cole bombing. FBI officials suspect that the jailbreak was an inside job and have demanded with no success that al-Badawi be returned to the United States. "People escape from prison all over the world," says al-Hajjri, Yemen's ambassador. "It happens."