Mohammed is the 31st Guantanamo detainee to win his petition for habeas corpus, which challenges the government’s right to continue to hold him without charge. According to David Remes, a lawyer who represents about a dozen Guantanamo detainees and closely tracks these cases, federal courts have ruled that the government can continue to detain eight of the 39 prisoners whose habeas cases have been heard.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

“I think it’s encouraging that they’re moving ahead despite the opposition,” said David Remes, Executive Director of Appeal for Justice, who represents more than a dozen detainees from Yemen imprisoned at Guantanamo.  Opponents “have unfortunately resurrected the idea that the guys down there are ‘the worst of the worst,’ and so dangerous that one has to consider whether even maximum-security facilities are able to hold them.”

Moving the prisoners will at least make visiting them easier. “We won’t have to take a commercial flight to Fort Lauderdale and then a puddle-jumper to Guantanamo, or submit to the restrictions of a military base,” he said. Federal officials can still place strict limitations on lawyers representing terror suspects in the United States, though, including preventing them from talking to the media about the evidence in their cases.

“On the other hand, what appears to be happening is that Obama’s efforts to release the men who ought to be released is being stymied by political opposition,” Remes said. “And it will be deeply unfortunate if he ends up moving Gitmo from Cuba to Michigan.” Many of the men should be released, Remes insisted. “And by eliminating the symbol of Guantanamo, there’s a danger that the focus on the plight of these men will disappear.”

Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo, shares that concern.

“We have not asked for Guantanamo to be closed so that the men could be moved to different prisons,” she said. “Some of these men, including my two clients, have been held for more than seven years without charges. It is time to either charge the men or release them … moving them to a different location does not solve the problem.”

As David Remes, executive director of Appeal for Justice who represents about a dozen Yemeni detainees at Guantanamo, explained to me earlier today, “If you look at the fine print of the Obama refined definition, you’ll see it’s limited to this litigation,” referring to the habeas cases. In the meantime, Obama has set up a team of people — a detainee policy task force — to study and consider and decide what U.S. detention policy should be going forward. “So it could be different than what DOJ has argued in the habeas cases,” says Remes.

But will it be?

National security and civil liberties experts like Kate Martin, director of the Center for National Security Studies, and Ken Gude at the Center for American Progress are among the many lawyers urging a far narrower interpretation that would be limited to the right to detain fighters picked up on the battlefield.

Of course, there’s the question of how to define the battlefield.  But Martin and Gude, in the memo they sent to the detainee policy task force, point out one way that seems to make perfect sense: rely on the military’s definition of the scope of its combat operations.

“As two retired JAG officers have explained, when the military is operating with rules of engagement pursuant to the law of war, such circumstance defines the ‘battlefield’ and the extent of combatant detention authority,” they write, citing a paper by Geoffrey S. Corn and Eric Talbot Jensen.

“There’s a clear line,” says Martin. “When the military is authorized to shoot to kill, they have detention authority. But otherwise you have to try them.”

Remes points out that you still have the problem of defining who’s a fighter, an issue which comes up in all the habeas cases. To some extent that will have to rest with the military, and then with whatever proceedings it affords detainees to challenge their detention. (If they’re in the United States or at Guantanamo Bay, of course, detainees also have the right to challenge their detention in federal court.)

These limits still may not satisfy some civil and human rights experts, as Spencer points out. They make a strong argument that the laws of war apply to conflicts between states, not conflicts between a state and a terrorist organization. As Gabor Rona, international legal director of Human Rights First, put it to me recently, the Geneva Conventions “presumed that where it’s a non-state armed group you’re fighting against it will be domestic law that applies, because those people are all criminals. Unlike in an international armed conflict, the privilege of belligerency doesn’t apply.”

There may never be a meeting of the minds between the Rona and Martin, or what I’ll call the strict civil libertarians and the pragmatists. But given that the federal courts so far have accepted that the United States is engaged in a “war” of some sort with certain terrorist groups and seem willing to define at least some of those fighters as “enemy combatants” (or whatever the Obama administration is calling them now), it’s hard to imagine that Obama — not one to give up authority easily — will completely walk away from that paradigm in the future.

What seems the more pressing question now is whether the administration will continue to push for the extremely broad view of its war powers that it’s advocated in Guantanamo habeas cases — the same definition that allowed the Bush administration to snatch and indefinitely detain without charge anyone suspected of supporting al-Qaeda or the Taliban anywhere in the world — or if they’ll be willing to restrict their powers to a more logical and limited reading of international law.

Alternatively, will advocates for a whole new system of preventive detention — such as Neal Katyal, now Deputy Solicitor General; Robert Chesney, a law professor at Wake Forest University spending the summer on the Detainee Policy Task Force; Jack Goldsmith at Harvard; and Benjamin Wittes at Brookings — persuade the administration that it needs Congress to pass new legislation to move beyond the laws of war, so that it does have authority to indefinitely detain without charge terror suspects seized anywhere in the world?

I know that’s not what the strict civil libertarians are advocating. But I wonder if, by refusing to recognize the applicability of the laws of war at all, they’re actually (though unintentionally) encouraging a far more radical solution.