RUTHFULLY YOURS

The government of Yemen announced yesterday that it will take six detainees, and more could follow if this transfer goes smoothly. Yemenis account for 97 of the 210 men still left at Gitmo, and 34 have been cleared for release. The problem is that Yemen is emerging as one of the world’s sanctuaries for al Qaeda, and its government has essentially run a nonaggression pact with the terrorists.

The U.S. says it will closely monitor the transfer, but once the detainees are in Yemen their treatment will be impossible to control. Several former Gitmo detainees from other countries have moved to Yemen to rejoin the global jihad, and one of them, Said Ali al-Shihri, turned up in a January video as al Qaeda’s No. 2 man on the Arabian peninsula. Adding to al-Shirhi’s potential recruitment pool seems a high price to pay for the alleged “global good will” for closing Guantanamo.

Meanwhile, another 100 or so prisoners will be transferred to a correctional facility near Thomson, in southern Illinois, which will be retrofitted on the taxpayer dime to federal “supermax” standards. The winters will be colder, but the detainees might not mind because they will also gain access to the protections of the U.S. justice system.

In the wake of the Supreme Court’s 2008 decision in Boumediene v. Bush, which gave Gitmo detainees the ability to bring habeas corpus claims, the feds have been losing a large percentage of habeas cases. Detainees that win their habeas petitions can no longer legally be held as enemy combatants, and the Administration is obliged to send them to their home country, or some other willing destination, assuming the detainee doesn’t mind. In cases where no one wants them or they fear return, such as the Uighurs to China, the detainees can at least still be held at Gitmo while the search is on.

In the event of a habeas defeat in Illinois, however, detainees who win their habeas claims might well end up being released here in the U.S. Under the 1988 Convention against Torture, a detainee can’t be returned to his home country if he can make a case that he’d be tortured there. If no country will take him, or the detainee doesn’t want to go on torture grounds, then he can no longer be held here in the U.S. and will have to be released.

The Administration insists these non-U.S. citizens won’t be allowed to walk American streets, presumably because it would use immigration law to hold them. But that’s hardly a legal certainty. Under its 1999 decision in Zadvydas v. Davis, the Supreme Court ruled the government couldn’t indefinitely detain an alien who was set for removal from the U.S.

Although the Court was careful in Zadvydas to note that the law was not tailored to terrorism-related cases that may warrant special consideration, the Supremes did make clear that a law allowing indefinite detention “would raise serious constitutional concerns.” The detainees will also have a small army of fancy lawyers dedicated to challenging their detention and prison treatment.

As for the politics, earlier this year Congress barred spending any money on transferring Gitmo prisoners to the U.S. Congress could lift that rider and appropriate the money, but we can’t see too many Democrats being thrilled at taking that kind of vote. California Senator Dianne Feinstein couldn’t back away quickly enough from the suggestion of using Alcatraz as the destination prison, and Mr. Obama got no warmer reception from Democrat Michael Bennet about a possible lock-up in Colorado.

Savor the irony. Mr. Obama says he had to close Guantanamo because it offended American values and was a recruiting tool for terrorists. Yet like Dick Cheney, Mr. Obama is now defending indefinite detention and even military tribunals for some of the detainees who will relocate to Thomson. We doubt al Qaeda will stop denouncing the U.S. merely because its comrades have moved to a state-side supermax. This is what happens when a new President rushes to fulfill a reckless campaign promise without a plan, or even much apparent thought.