One of the most recent such decisions involves the case of Mohamed Mohamed Hassan Odaini, a Yemeni national, who has been held in Guantánamo without charge or trial since June 2002 after being taken into custody as a 17-year-old in Pakistan two months earlier. For more than seven years, the only review of his detention was executive not judicial. Even favourable executive findings did not lead to his release, demonstrating the need for enforceable judicial oversight. In April 2004 a member of the Pentagon’s Criminal Investigation Task Force reviewed Mohamed Odaini’s case and recommended that he be released. In 2007, Mohamed Odaini’s US lawyer was informed that his client had been approved for release from Guantánamo under executive review procedures initiated in 2004 by the Bush administration. In June 2009, his lawyer was told that he had been approved for release under the executive review conducted by the Guantánamo Review Task Force, established under President Obama’s 22 January 2009 executive order on closing the Guantánamo detention facility. Still Mohamed Odaini remained in custody.
The judicial review to which Mohamed Odaini had been entitled for years came to fruition in 2010. On 26 May 2010, over eight years after being taken into custody and nearly two years after the US Supreme Court’s Boumedieneruling, District Court Judge Henry Kennedy found Mohamed Odaini’s detention to be unlawful and ordered his release. Judge Kennedy wrote that the US authorities had
“kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody as such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda.”
“…I speak to you in all the languages and dialects of the world to look to this family with eyes of mercy and sympathy. This family’s main and greatest concern is the return of their son whose long absence made us miss him much more. We knew him as a loving brother and a caring sibling whose parents have been deprived of this love. A missing brother we pray he comes back safe to us…”
Letter to President Obama from sister of Mohamed Odaini (translation from Arabic original)
A month after the decision, Mohamed Odaini remains at Guantánamo, his release already years overdue. In his 26 May ruling, Judge Kennedy ordered the US administration to take “all necessary and appropriate diplomatic steps to facilitate Odaini’s release forthwith” and to report back to the court by no later than 25 June 2010 on the detainee’s status. Even now it is not clear what will happen to Mohamed Odaini given that President Obama in January 2010 ordered a suspension of any transfers to Yemen of Yemeni nationals held in Guantánamo, citing security concerns. The authorities have said that no Yemeni national will be repatriated until this moratorium is lifted.10Anonymous US administration officials are reported to have said that the administration is considering partially lifting the moratorium in the wake of Judge Kennedy’s ruling.11