Detainees without a country

LONDON – More than a fifth of the approximately 385 prisoners at Guantanamo Bay, Cuba, have been cleared for release but might have to wait months or years for their freedom because U.S. officials are finding it increasingly difficult to line up places to send them, according to Bush administration officials and defense lawyers.

Since February, the Pentagon has notified about 85 inmates or their attorneys that they are eligible to leave after being cleared by military review panels. But only a handful have gone home, including a Moroccan and an Afghan who were released Tuesday. Eighty-two remain at Guantanamo and face indefinite waits as U.S. officials struggle to figure out when and where to deport them, and under what conditions.

The delays illustrate how much harder it will be to empty the prison at Guantanamo than it was to fill it after it opened in January 2002 to detain enemy fighters captured in Afghanistan and terrorism suspects captured overseas.

In many cases, the prisoners’ countries do not want them back. Yemen, for instance, has balked at accepting some of the 106 Yemeni nationals at Guantanamo by challenging the legality of their citizenship.

Another major obstacle: U.S. laws that prevent the deportation of people to countries where they could face torture or other human rights abuses, as in the case of 17 Chinese Muslim separatists who have been cleared for release but fear they could be executed for political reasons if returned to China.

Compounding the problem are persistent refusals by the United States, its European allies and other countries to grant asylum to prisoners who are stateless or have no place to go.

“In general, most countries simply do not want to help,” said John Bellinger, legal adviser to Secretary of State Condoleezza Rice. “Countries believe this is not their problem. They think they didn’t contribute to Guantanamo, and therefore they don’t have to be part of the solution.”

A case in point is Ahmed Belbacha, 37, an Algerian who worked as a hotel waiter in Britain but has been locked up at Guantanamo for five years. The Pentagon has alleged that Belbacha met al-Qaida founder Osama bin Laden twice and received weapons training in Afghanistan. His attorneys dispute the charges and say he was rounded up with other innocents in Pakistan in early 2002.

On Feb. 22, without explanation, the Pentagon notified Belbacha’s lawyers in London that he had been approved to leave Guantanamo. Despite entreaties from the State Department, however, the British government has refused to accept Belbacha and five other immigrants who had lived in the country, because they lack British citizenship.

This month, Clint Williamson, the State Department’s ambassador for war crimes, visited Algiers to discuss possible arrangements for the return of two dozen Algerians who remain at Guantanamo, including Belbacha, but no breakthroughs were reported. That country has been slow to accept its citizens.

Zachary Katznelson, a lawyer who represents Belbacha and several other prisoners who have been cleared, said defense attorneys have tried to speed up the process by contacting foreign governments to see if there are any specific obstacles to the return of their clients. In many cases, he said, the prisoners and officials in their home countries are willing to approve the transfer, but the delays persist.

“The holdup is a mystery to me, frankly,” said Katznelson, senior counsel for Reprieve, a British legal defense fund. “If the U.S. has cleared these people and they want to go back, I don’t understand why they can’t just put them on a plane.”

Other prisoner advocates said the Bush administration has made its task more difficult by exaggerating the threat posed by most Guantanamo inmates – officials repeatedly called them “the worst of the worst” – and refusing to acknowledge mistaken detentions.

Foreign governments have questioned why U.S. officials should expect other countries to pitch in, given that Washington won’t offer asylum to detainees either.

“This is a problem of our own creation, and yet we expect other countries to shoulder the entire burden of a solution,” said Ben Wizner, staff attorney with the American Civil Liberties Union. “There needs to be a worldwide solution here. The U.S. has to bear some of that burden. It can’t simply expect its partners and allies to absorb all its detainees.”

The 82 cleared prisoners who remain stuck in limbo come from 16 countries in the Middle East, North Africa and South Asia, according to defense attorneys who have received official notification of their clients’ status.

The 17 Chinese Muslim separatists make up one of the largest contingents. Other countries with multiple prisoners awaiting release include Afghanistan, Sudan, Tunisia, Uzbekistan and Yemen.

The Pentagon has reduced the population at Guantanamo by roughly half since the peak of 680 in May 2003, generally by sending prisoners back to their native countries. But U.S. officials said progress has slowed because of the complexity of the remaining cases.

Of the roughly 385 still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest. But the judicial process has moved at a glacial pace, largely because of constitutional legal challenges.

Only two people have been charged under a military tribunal system approved by Congress last year. One of those cases has been adjudicated. David Hicks, an Australian citizen, pleaded guilty in March to lending material support to terrorists. He was sentenced to nine months in prison and is scheduled to be transferred to Australia in May to serve his time there.

Defense lawyers for some of the 82 cleared prisoners whose release is pending said Hicks received a better deal than did their clients who were not charged with any offenses. “One of the cruel ironies is that in Guantanamo, you’ve got to plead guilty to be released,” said Wizner, the ACLU attorney. “It’s the only way out of there.”

Virtually all the prisoners at Guantanamo come from countries that the State Department has cited for records of human rights abuses. Under U.S. rules, a pattern of abuses in a country does not automatically preclude deportation there. Rather, U.S. officials must investigate each case to determine whether an individual is likely to face persecution.

The investigations are time-consuming and often meet with resistance from the prisoners’ home countries, which can be sensitive to suggestions that they allow torture, U.S. officials said. In cases where there is a risk of mistreatment, U.S. policy is to obtain a written promise from the host government that the prisoner will not be abused and that U.S. officials will be allowed to monitor the arrangement.

Only one country has been willing to accept Guantanamo prisoners who had never previously set foot inside its borders. Last year, after prodding by the State Department, the Balkan nation of Albania agreed to take five Chinese separatists who belong to an ethnic group known as Uighurs.