What Countries Will Take Gitmo Detainees?

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.

The Saudis have a rehabilitation program to deprogram jihadis who served at Guantánamo. How successful has it been?
The Saudi program has been a great success. And the way you judge if it's been a success or not is by the recidivism rate of people who leave the program. The Saudi government says the recidivism rate is very, very low. And I think the U.S. government has been very happy with the way the Saudi government has conducted itself with respect to the rehabilitation program. Now, it works because Saudi society is organized around very close-knit family and clan structures, so the Saudi government enlists the entire family and clan in being responsible for ensuring that once these people get through the re-education program, they don't go back to the fight because they know there are going to be consequences for the village and the family.

What about the third-country resettlement diplomacy that was going on? The way I understand it, about 50 people at Guantánamo would face torture if sent home and need to be resettled in third countries. But only Albania, so far, has been willing to accept former detainees, is that right?

Tell me about that type of negotiation. What do third countries say when the United States approaches them on the resettlement issue?
Well it's been a very difficult process. The State Department over the past few years has approached almost every country on the globe and asked them to take Guantánamo detainees for third-country resettlement. The problem is a sort of obvious one, that is, you are not the country of nationality for these people, what is your incentive to want to take people who the U.S. often believes have some links to terrorism, although they may be able to be managed, and bring them to your country? These governments have parliaments, they have domestic political opposition to bringing these folks in, and then they have some security considerations. Why do they want to bear the burden, in their minds, to bringing these people in? And lastly, one of the most frequently mentioned stumbling blocks would be the fact that the United States itself has not let anyone in from Guantánamo. So you often get people saying, "Well why don't you take in people first?"

What ' s the U.S. response to that question?
This administration made a decision a long time ago that it was not going to allow Guantánamo detainees into the United States … The U.S. basically makes a burden-sharing argument: the U.S. is bearing the burden of detaining all these people and their detention helps the whole world so it's up to our allies to help with the burden and that would come in the form of resettling people once the U.S. has determined they no longer need to be detained.

It seems to me you're saying that until the United States agrees to take in some number of Guantánamo detainees, we're not going to be able to persuade our allies—European countries, Canada, Australia and others—to do so. Is that your view?
It is my view. Although one caveat on that is there is no guarantee even if we were to take people in that these countries would actually take people in themselves. Many times the countries will say, "OK, we'll do it if you do it," as a stalling tactic. So we won't know for sure until we do take some people in whether in fact that will grease the wheels and get other countries to take them in. I think one thing the president-elect can do is think about convening some kind of detainee conference where the U.S. pledges to take a certain number of detainees for resettlement in exchange for pledges from other countries at the conference.

But one way or another, it sounds like you're saying we should get used to the idea that some number of Guantánamo detainees in perhaps a year or two will be living freely in Chicago or Detroit or elsewhere in the United States. There is a certain irony here, given that the Bush administration has told us Guantánamo detainees are the "worst of the worst."
I can see the irony in that situation and I can see why as a political matter it would be very difficult to do but the reality of the situation is there may be few if any options with respect to some of these people … One thing that should be explored is the extent to which the FBI and the Justice Department more generally would have tools at their disposal to monitor Guantánamo detainees once they are released to the United States.

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