Last week's cargo bomb plot that took shape in Yemen brought renewed attention to that country's fight against terrorism, and highlighted the fate of 57 Yemeni detainees cleared for release but languishing at the Guantanamo Bay prison.
The future had already been looking grim. Dozens of the men had been approved to return home, or to third countries. Then last Christmas, investigators traced the underwear bomb plot to an al-Qaida group in Yemen, leading the White House to suspend plans to send them home.
Now there are two strikes against the detainees.
Difficult Politics
David Remes, a human rights lawyer who represents 13 Yemeni men still at Guantanamo, was in Yemen visiting his clients' families when the news broke.
"I don't think President Obama is going to return the Yemenis to Yemen until it's politically feasible for him to do so, and frankly, I'm not sure when that will ever be," Remes said in an interview from Sana'a, Yemen's capital.
He said the security situation in Yemen and the politics in the U.S. are creating a cruel irony. Consider this: On Sunday, a military judge sentenced young Canadian detainee Omar Khadr to serve one more year at Guantanamo after he pleaded guilty to war crimes, including throwing a grenade that killed a U.S. soldier.
I don't think President Obama is going to return the Yemenis to Yemen until it's politically feasible for him to do so, and frankly, I'm not sure when that will ever be.
Khadr could go home to Canada next year while the men from Yemen who have been cleared for release remain stuck in limbo.
"It's a terrible irony that these men who have been through criminal proceedings are getting out before the men who have not been accused at all," Remes said.
GOP Senator's Plan
So, what to do about the 57 men from Yemen?
Some of the proposals on the table, including one by Sen. Lindsey Graham (R-SC), would ensure that detainees held for long periods of time receive regular reviews from a court. But Graham's bill has gone nowhere, as he noted in a speech in September to the American Enterprise Institute.
No matter how you look at it, Graham said, the politics are next to impossible.
"Congress has been AWOL, Democrats are scared to death to talk about this, and most Republicans just demagogue," Graham told the audience. "Other than that, things are going great."
Length Of Detention
For now, the Obama administration is relying on its legal authority under a 2001 act of Congress to hold detainees from Yemen and other countries for long periods of time without criminal charges or trials.
Matthew Waxman, a law professor at Columbia University and a fellow at the Council on Foreign Relations, said that so far the courts have mostly agreed with that approach.
But the country is getting further away from the Sept. 11 attacks and the congressional authorization to use force.
"One important open question is for how long does the executive branch feel confident it can rely on that authority, and for how long can courts continue to uphold the executive branch's authority in relying on that?" Waxman said.
Some left-leaning groups don't want Congress to pass a law on indefinite detention because they object to the idea that a person can be held for long periods without a trial. Many conservatives think the laws of war already cover these situations. So, they say, there's no need for Congress to weigh in.
That leaves the Obama White House, and the fate of the 57 Yemenis, stuck in the middle.
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