Life After Gitmo

With the economy commanding most of his attention, President-elect Barack Obama has probably had little time to work on his campaign pledge to close the detention center at Guantánamo Bay. But he's benefited from two Guantánamo-related developments lately that are not of his own making. This week the Pentagon sent home Yemeni national Salim Hamdan, who had been convicted by a military tribunal earlier this year of acting as Osama bin Laden's driver. Hamdan was close to serving out his sentence but the Pentagon had been insisting it could hold him indefinitely as an enemy combatant. Separately, a Washington federal court ruled last week there was insufficient evidence to continue imprisoning five Bosnians and ordered the Bush administration to set them free. About 250 people remain locked up at Gitmo.

One of the lesser-known aspects of Guantánamo is the complicated negotiation the State Department conducts with countries around the world before releasing their nationals and sending them home. To understand more about the Hamdan repatriation and other cases, NEWSWEEK's Dan Ephron spoke with Vijay Padmanabhan, who served until August of this year as an attorney adviser in the State Department with responsibility for detainee issues. He now teaches at the Cardozo School of Law in New York. Excerpts:

NEWSWEEK: How are these negotiations conducted? What kinds of issues come up?
Vijay Padmanabhan: As a general matter, the United States looks for two sets of assurances from every country that we send Guantánamo detainees back to. The first set would be security assurances. And the essence of the security assurance would be that the country that is taking back the detainee will manage the threat posed by the individual so they don't pose a threat to the U.S., its allies and that home country. The second set of assurances is linked to humane treatment. It's a policy of the United States not to transfer anyone from one country to another where it's more likely than not [the individual] will be tortured.

How do countries respond to these conditions?
The responses really run a large gamut from countries that are very eager to get their nationals back and eager to do what the United States asks, to countries that have poor human-rights records where you really do get bogged down in concerns about human-rights situations, to countries with very poor security situations where it's difficult for the United States to trust assurances that are being provided on the security front. And we know that Yemen tends to fall in that third category. The fear is Yemen doesn't have the capacity to make sure former detainees do not pose a security threat going forward.

You ' ve been out of government since August, so obviously you weren ' t involved in the diplomacy that led to Salim Hamdan ' s repatriation but what issues do you think were raised in that negotiation?
A small number of detainees have previously been repatriated from Guantánamo Bay to Yemen. The concern with Yemen as a general matter is that the security situation there is very poor. Just earlier this year there were mortar shells being lobbed into the [U.S. Embassy] compound in Sana. There's a great deal of instability in Yemen … and a limited ability by the government to actually exercise control over its own territory. So I think there are some very legitimate concerns. But I'm guessing that with Mr. Hamdan, contrary to what was portrayed by the military-commission prosecutors, he is a very, very small fish. And so I'm guessing the determination was made that the political costs of continuing to detain someone who has served his sentence … are too great. It made sense to send him home.

So you don't conclude from the fact that Hamdan was repatriated that maybe some new understanding was reached with Yemen that will allow the release of other Guantánamo detainees back to Yemen?
I do not at all … I think this is just an admission that the government really has overstated the case against Mr. Hamdan, and it makes sense to just let him go home. The next administration is going to have to figure out how many of the Yemeni detainees at Guantánamo are like Mr. Hamdan in terms of their security threat. I do think there's an opening to continue transferring people back to Yemen who fit the profile of Mr. Hamdan, detainees who may have been involved at a very low level with the Taliban or Al Qaeda. Send them home and let the Yemeni government worry about the problem those people pose. But I don't think that you can draw from the Hamdan example anything with respect to the more serious individuals who are being held there.

Would the majority of Yemenis h eld at Guant á namo fall under the same category as Hamdan — small fish?
I don't know, and to be honest with you I don't think the Department of Defense really knows. I think the next administration needs to approach this with clean eyes, people who have not been trying to justify detention for seven or eight years, who look at these facts with jaundiced eyes. You need someone new to come in and take a look at the facts and make a cold-hearted assessment and say, "OK, these people are like Hamdan and they can go home." Keep in mind the Defense Department up until three months ago was saying he should be given a life sentence for his activities. So I think there's no credible assessment that's been done by this administration as to who would fall under that category.