What if a Yemeni Sued the U.S. Government? (What if 56 of them did?)

by Joe Scarry

The plight of Yemeni detainees at Guantanamo is turning a thought experiment into a cause of action.

The thought experiment runs as follows:

(a) Our system of law is predicated on the idea that wronged parties have means of obtaining redress.  

I was reminded of this principle just this morning when I read about the ruling of presiding judge of the criminal division, Cook County Courts, Paul Biebel, appointing Loyola University Chicago School of Law Dean David Yellen to search out additional victims of torture by John Burge and other Chicago Police Department officers. (See “Law school dean appointed to search for Burge victims still in prison” in the Chicago Tribune.) Judge Biebel said, “The individuals who are still incarcerated as a result of his wrongdoing deserve resolution.” 

(b) There are currently 56 Yemeni detainees at Guantanamo who have been cleared for release — i.e. the U.S. can find no way to charge them with a crime — i.e. after up to twelve years of detention, they have been found to have been held through no fault of their own.

For more background on this see “Yemeni Guantanamo Detainees in Limbo” on the Voice of America (VOA) website.

(c)There is a strong case to be made that these men were wrongfully imprisoned, and at least some of them tortured, and they need to have legal recourse to remedy the wrong done them.

(d) It is incumbent on the government to provide opportunity for plaintiffs to seek redress. The failure to do so renders the notion of “remedy” moot.

The theoretical rights of Guantanamo detainees to redress tend to go out the window when those detainees are repatriated. First, the U.S. government coerces the detainees to “sign away” their rights before releasing them (though this coerced surrender of rights would certainly be annulled in any court). Then their home governments sweep those ex-detainees up into programs directed at “putting their past behind them.”

The situation of the Yemenis, however, may have the effect of making real the possibility that survivors of Guantanamo will, in fact, be able to sue the U.S. government.

Nowhere to go

YEMEN: Humanitarian Snapshot
Download pdf for better resolution

The argument made by the U.S.government has been that the political, social, and ideological environment in Yemen is so volatile that it is the kind of place where ex-Guantanamo detainees may seek to obtain redress of their mistreatment by joining anti-U.S. groups.

Barack Obama imposed a ban on repatriations to Yemen, and then in May, 2013, decided to lift his self-imposed ban.  (“[T]he government is highly dysfunctional, but it is much more functional than it was a year ago or even two years ago.” See “Obama lifts ban on Guantanamo transfers to Yemen,” Associated Press, May 23, 2013.)

One might well ask if the real problem isn’t that the U.S. keeps conducting drone strikes in Yemen, and that everyone in Yemen is mad as hell at the U.S. . . . .

. . . or that Yemen is in the grips of a humanitarian crisis that renders everyone vulnerable. (See map above right.)

Ban or no ban . . .  drones or no drones . . . humanitarian crisis or no humanitarian crisis . . . the U.S. government evaluation of “what might happen” and how “people might think” in Yemen has changed little and Yemeni detainees at Guantanamo are going nowhere. (“Marginal security environment” … “susceptibility to re-engagement” … See “Panel Says Yemeni Man Should Stay in Detention,” New York Times, March 13, 2014.)

And all of this has the effect of putting a fine point on the question: What else are those 56 men supposed to do, considering they don’t have the opportunity for redress of their mistreatment through the courts?

What have we created?

An observation has reverberated through my mind since I first heard it expressed in the film, The Response.  In the film, one member of a panel of three tribunal judges at Guantanamo says,

“If they weren’t terrorists before, what does locking them up in this place for five years turn them into?What are we creating here?

I don’t know if these exact words have ever been spoken on the record by any U.S. officer. I’m confident, however, these words reflect the sentiments of countless members of the military.  And that is what has helped clarify for me that the question before us really is: How can we hustle these ex-detainees off to a place where they have no legal recourse to have their grievance against us redressed, and then complain if they pursue means outside the law to do so?

In other words, is the problem conditions in Yemen? Or is the real problem the absence of redress of grievances in the U.S. legal system?

Isn’t it time we started to ask, “What did you do to these people to make you so sure they will be bent on revenge?”

Perhaps it is a blessing in disguise that the Obama administration is stonewalling on the release of the Yemeni detainees.  Maybe this gives us an opportunity to demand that they be given asylum in the United States — and be given the full opportunity to have their grievance against those who kidnapped and tortured them redressed through the rule of law.


UPCOMING: Join members of the Chicago Coalition to Shut Down Guantanamo for a program on the evening of Tuesday, March 25, 2014, at 7 p.m.: Yemeni Detainees at Guantanamo – Why Are They Still There? (Grace Place, 637 S Dearborn, Chicago) 

Related posts

Even if the current Obama administration approach of releases were to succeed in bringing about the release of everyone at Guantanamo, it would not have begun to address the wrong that has been committed.

(See US to its Humans Rights Violations Victims: “Shut up and take what you’re given!” )

I think the U.S. is in the midst of a big shift.  I think that for over a decade following 9/11 people have been so enmeshed in fear that their instincts weren’t working properly. I think that we are in the midst of a slow process of awakening: people are emerging from the shadow of fear to a wider range of sensibility — and they are realizing there are some things that are out of joint.

(See Too Much State Power? (Asymmetric Warfare and Asymmetric Policing))

It is clearly the time for an annual dose of stealth maneuvering by our government’s “national security” apparatus, led by the President.  They’re hoping that they can make it look like Guantanamo is “going away.” According to the Administration’s script, Americans are supposed to yawn and go back to sleep. Instead, we need to be saying: how do we take responsibility for the injury we have caused?

(See A Modest Proposal: Resettle the Guantanamo Detainees in Chicago)

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