“It is well past time for the U.S. to take action,” said Ramzi Kassem, a law professor at the City University of New York and an attorney for Bakri. “We do not understand the point of keeping him in custody when the Department of Defense says he should be released and the conditions for his repatriation or resettlement are in place. This is taking a terrible toll on him and his family.”
Persistent concerns about security in Yemen, where a weak central government is battling both an insurgency and an affiliate of al-Qaeda, have complicated the Obama administration’s plans to free detainees from that country.
In 2010, President Obama suspended the repatriation of Yemeni detainees who had been cleared for transfer from Guantanamo Bay, Cuba. A Pentagon official, speaking on background because he was not authorized to discuss the matter on the record, said Obama’s decision has, in effect, been extended to Yemeni detainees held in Afghanistan.
Asked about Bakri and Maqaleh, the official declined to discuss individual detainees but noted that detainee review boards only make recommendations and have no power to order a release.
Last month, U.S. officials said they would gradually transfer control of most detainees in their custody in Afghanistan to the Kabul government, but the agreement does not cover about 50 non-Afghans.
The future of those detainees is nonetheless becoming more urgent as the Pentagon plans for a significant reduction in U.S. forces in Afghanistan by 2014; American officials believe that the Afghans have no interest in continuing to hold foreign detainees.
Some in the Obama administration have been advocating for the gradual repatriation of most, if not all, of these detainees after securing commitments from their home governments that they will continue to be monitored.
In January, the Yemeni foreign minister said in a letter that was passed to U.S. officials that Bakri and Maqaleh would be denied passports and would be prevented from traveling after their return home. They would also be required to report to a police station weekly. Both men have agreed to the conditions, their attorneys said.
The Yemeni government said it would not object if the United States decided to resettle the men in a third country. Families of the two men, who are from Sanaa, the capital, also agreed to support them financially and said they would ensure that the men lead peaceful lives.
Attorneys for the two men provided copies of documents containing the Yemeni government’s commitments. But it is unclear what understanding, if any, the Yemenis expected in return for these commitments.
Kassem said U.S. officials requested certain guarantees from the Yemeni government and the families of the detainees. “Why are they leading them on?” he said.
Neither man has been charged.
A spokesman for the Yemeni Embassy in Washington said that any negotiations with the U.S. government are “protected information” and that Yemeni officials would not comment on them.
A Pentagon spokesman also would not comment.
Attorneys for the two men said their clients were detained in third countries and illegally transferred to the U.S. prison at Bagram air base in Afghanistan.
Bakri, a gem salesman, was detained in Thailand in 2002 by the CIA as he was headed to the airport to return to Yemen after a five-day business trip, according to Kassem.
Maqaleh disappeared from his home in Yemen in 2004, when he was a high school student. His attorney said that she does not know where he was first detained but that he was held in Iraq before being taken to Afghanistan.
In 2010, the U.S. Court of Appeals for the D.C. Circuit ruled that Bakri and Maqaleh cannot challenge their detention through the writ of habeas corpus, a right that the U.S. Supreme Court had extended to detainees at Guantanamo.
“There is no mechanism to make people accountable,” said Tina Foster, an attorney for Maqaleh and executive director of New York-based International Justice Network. “He has been cleared, and yet he still languishes there because no one wants to assume political responsibility.”
Staff researcher Julie Tate contributed to this report.