In 2002, my client, Kuwaiti citizen Fayiz Al-Kandari, was captured by Pakistani forces and sold to the United States military. Since that time, he has been confined without charge at America's notorious island prison at Guantanamo Bay, Cuba for almost nine years.
On various occasions since 2002, Kuwait has politely asked the United States to return Fayiz and the other remaining Kuwaiti detainee to Kuwaiti control. Each time, the United States has refused Kuwait's request, citing concerns about the country's ability to monitor or rehabilitate its returned citizens. In response, Kuwait has constructed a multi-million dollar rehabilitation center, diligently monitored the detainees that were returned previously, and taken action to address each of the United States' concerns. Still, the U.S.'s answer remains the same.
In fact, after Kuwait had satisfied each of the United States' concerns, the United States simply fell back upon its most enduring argument for refusing Kuwait's requests: Abdallah Al Ajmi, a former Guantanamo detainee who was involved in a suicide bombing in March 2008. Since that time, the United States has relied upon the Al Ajmi incident as irrefutable proof that Kuwait is incapable of taking custody of its own citizens. Of course, the fact that the March bombing occurred before the construction of the Kuwaiti rehabilitation center and before the country began diligent monitoring of detainees and implemented other new programs is of no consequence. As a result, no matter what safeguards Kuwait implements, it cannot possibly appease the United States, and Kuwait's polite requests will never be granted.
It is time for Kuwait to adopt a new strategy and begin meaningful negotiations for the return of its sons. At a minimum, if Kuwait's goal is to repatriate the two Kuwaitis held at Guantanamo Bay, it should send a team of professionals there to evaluate both men and begin the process of repatriation on site.
The following factors are almost certainly true: Kuwait and the United States will never have a stronger friendship than they currently have; Kuwait will never be more stable or better able to handle its two remaining detainees; there is insufficient evidence to prove any crime on the part of the detainees - America cannot convict them in court and must therefore resolve their cases by some alternate means.
Unfortunately, such "alternate means" may be indefinite detention, the most draconian tool in President Obama's foreign policy arsenal. Indefinite detention involves a decision that a particular detainee cannot be successfully prosecuted (due to insufficient evidence) and cannot be released (because of alleged connections to an enemy force). Thus, the unfortunate subject is "indefinitely detained" until "cessation of hostilities" - which, in the War on Terror, will never occur. In essence, it amounts to a life sentence without trial, based upon secret information reviewed by secret individuals in secret proceedings.
President Obama's only other option is to trust Kuwait to take responsibility for its own citizens, and this is the course of action Kuwait must demand (not request). Kuwait has only a limited time before Obama's indefinite detention policy becomes entrenched. Meaningful negotiations for Fayiz Al-Kandari must begin immediately - and this time, Kuwait must not take "no" for an answer. In other words, Kuwait should do what the United States would do if the situation were reversed.