Although pieces of the law have been blocked by federal courts, some sections have gone into effect, including a provision that bans courts from enforcing contracts made with unauthorized immigrants. While some states have banned public agencies from making contracts with unauthorized immigrants, no state or developed country has prohibited courts from enforcing any contract with the undocumented, say experts in immigration and human rights.

“We don’t know of a similar parallel, either internationally or elsewhere in the United States, where contracts with unauthorized immigrants are deemed unenforceable,” says Michelle Mittelstadt, communications director for the Migration Policy Institute.

“The bottom line is that Alabama’s law is a complete outlier,” says Alison Parker, director of Human Rights Watch’s U.S. program. “The only country where we are aware of something that comes close to what Alabama has done” is Italy, she said, pointing to a law that makes it illegal to rent to to unauthorized immigrants. “What they are doing in the state of Alabama runs in the face of human rights law.”

European countries have traditionally been viewed as less welcoming of immigrants than the United States, which for much of its history allowed migrant workers to cross the borders with Mexico and Canada without clearance from a government agency. Parker’s colleague Benjamin Ward, deputy director of Human Rights Watch’s European program, called Alabama’s law “unbelievable and horrific.”

Throughout the twentieth century, border security efforts have steadily increased, and repeated attempts have been made to bring formerly unlimited quantities of new immigrants down to what’s considered by policymakers to be a manageable level.

But Parker says there’s an important distinction between controlling immigration at the border and stripping rights from immigrants already in the country.

“Everyone has the right to a family life, to a roof over one’s head, to compensation for work,” says Parker. “Once people are here, there are certain fundamental rights protected by human rights law.” European governments have tended to adhere to that standard.

Mittelstadt points out that immigrants in Europe tend to be registered with the government, which means that the contract rights of immigrants aren’t likely to be subject to Alabama-style laws: “In Europe, where national ID cards and registration programs for foreigners prevail, employers and others would not be likely to enter into contracts with unauthorized immigrants.”

At this point it’s unclear how the Alabama immigration law will be interpreted by the federal courts, including the U.S. Supreme Court, which is likely to step in now that the appellate courts have issued different decisions on state-level “enforcement only” laws (the Ninth Circuit upheld a decision to block Arizona’s immigration law from going into effect earlier this year).

The ban on contracts is especially murky, and there are few precedents that experts can point towards to predict its viability in the courts. The most relevant precedent could be a 2002 Supreme Court case, Hoffman Plastic v. NLRB, in which the court ruled that unauthorized immigrants aren’t entitled to back pay under the National Labor Relations Act. But the Court did establish that unauthorized immigrants were “employees” under the Act and had the right to organize.

However, it may be Alabama’s own state constitution that determines the fate of the contract ban.

As ThinkProgress reported, an Alabama state judge indicated in a decision earlier this week that the contract ban appears to violate Section 95 of Alabama’s own constitution, which states:

There can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement; and the legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.

In an opinion on a breach of contract lawsuit filed by an undocumented immigrant, Alabama Circuit Judge Scott Vowell wrote, “It may well be that that [the Alabama immigration law] also violates this section of the constitution” by “impairing the obligation of contracts.”

But since the case in question was filed before the immigration law went into effect, the judge didn’t outright rule the section unconstitutional, merely that the law could not take away an immigrant’s “cause of action” or “existing defense” after his or her case has already been filed.

“People who are dependent on drugs in Vietnam need access to community-based, voluntary treatment,” Joe Amon, health and human rights director at Human Rights Watch in New York, said in a statement. “Instead, the government is locking them up, private companies are exploiting their labor and international donors are turning a blind eye to the torture and abuses they face.”

The government of Vietnam denies the report, calling it groundless.

Vietnam is one of 34 counties and regions receiving money under PEPFAR, a program initiated by former President George W. Bush. The U.S. government website say the southeast Asian country has received nearly $325 million under the program between 2004 and 2009.

Vietnam, as well as other countries in southeast Asia have been the most recent location of rapid HIV spread. The epidemic is fueled by the sex trade and intravenous drug use in that country.

The report card by Detention Watch Network, the National Immigrant Justice Center and the Midwest Coalition for Human Rights gives grades for a number of different reforms promised by ICE. Perhaps most interesting, though, is the report’s criticism is of ICE’s failure to create alternatives to detention. The agency promised these alternatives would be implemented by this fall, but according to the report they have not yet been developed. (ICE officials did not immediately return requests for comment.)

These alternatives would create non-detention options for illegal immigrants determined not to be dangerous and unlikely to pose a flight risk. It’s unclear how many illegal immigrants would fit into this category, but it could be a big cost-saving measure given the high cost of immigrant detention.

Of course, cost isn’t the only factor: The groups behind the report argue ICE wrongly treats immigrant detainees like criminals. Alternatives to detention would be a way to differentiate more clearly between illegal immigrants who are convicted of a crime and those in civil deportation proceedings.

Other groups have also criticized ICE for slow implementation of its reform measures. In response to continued reports of sexual abuse at detention facilities, Human Rights Watch released a series of recommended detention reform steps in August. ICE has made a few notable changes, including a detainee locator tool to help families and legal counsel track where detainees were being housed. But while ICE officials have promised more progress to come, the agency is missing its own deadlines for many of its reform objectives.

Sexual abuse allegations at Hutto were particularly disturbing because the facility was lauded as a symbol of ICE’s year-long detention reform effort, as The Texas Independent pointed out last week. But Human Rights Watch argued they were not an isolated incident, claiming the problem is more widespread than officials realize because detainees are often deported or otherwise unable to report abuse.

ICE already made some steps toward preventing sexual abuse in detention centers after Hutto abuse allegations surfaced in May. Officials plan to publish revised standards for dealing with sexual assault. ICE will also prohibit guards from searching or transporting detainees of the opposite gender. Official policy already bans male staffers from being alone with female immigration detainees — a rule contract guards at Hutto, a Corrections Corporation of America facility, were allegedly breaking. In May, ICE ordered the prison contractor to stop allowing male guards to be alone with female immigrant detainees.

Still, Human Rights Watch argued more reform is needed: Congress should pass legislation mandating certain conditions for immigration detention facilities so the Department of Homeland Security can ensure standards are applicable to all of its facilities, the group argued. At the same time, they said ICE should increase its ability to monitor and respond to sexual abuse within detention facilities, giving the following suggestions for reform:

• Ensure that reports of sexual abuse are thoroughly investigated.
• Improve the monitoring of compliance with detention standards by detention facilities.
• Expedite implementation of the detention standard on preventing and responding to sexual assault and abuse across all facilities holding ICE detainees.
• Require detention centers to facilitate on-site access for local community providers of support services for sexual assault survivors.
• Standardize procedures for ensuring access to appropriate relief measures for victims, including release from detention and visas to remain in the United States and assist law enforcement.
• Require detention facilities to have reasonable suspicion of infractions before conducting pat-down searches of detainees.
• Ensure that detainees are fully informed about their rights with respect to sexual assault, abuse, and harassment.

Now a coalition of human rights organizations, several of which sent representatives to Guantanamo to observe Khadr’s hearing, has written to the officer who issued the ban, Marine Col. Dave Lapan, to protest their exclusion. The ban is “counter to the U.S. administration’s stated commitment to transparency in government,” the coalition writes, and “will also bring the military commissions into further disrepute, internationally and within the United States.”

The full letter — signed by Human Rights First, Human Rights Watch, Amnesty International, the American Civil Liberties Union and the National Institute of Military Justice — is below:

Dear Colonel Lapan,

We are writing to express our serious concern about the Defense Department’s decision to ban four journalists – from The Miami Herald, the Toronto Star, the Globe and Mail and CanWest Newspapers of Canada – from covering future military commission proceedings at Guantánamo Bay on the grounds that they had revealed the name of a witness in violation of rules governing media reporting of the commissions.

We consider that this move by the Department of Defense not only runs counter to the U.S. administration’s stated commitment to transparency in government, but will also bring the military commissions into further disrepute, internationally and within the United States.

As you know, the witness who appeared in Omar Khadr’s pre-trial hearing, identified by the prosecution as “Interrogator No. 1,” had previously been the subject of a widely publicized military court-martial in 2005 that resulted in his conviction for detainee abuse committed at the Bagram airbase in Afghanistan in 2002. His connection to the Khadr case had also previously been revealed from information he himself gave in an on-the-record interview to a reporter at the Toronto Star. That reporter, Michelle Shephard, who wrote a book about Omar Khadr, is now one of those being banned from future commission hearings simply for reporting the same information that had previously been widely published and disseminated.

Whatever confidence the public in the United States and around the world may maintain in these proceedings can only be eroded by a move that is perceived as being motivated by a clampdown on informed media reporting rather than the protection of classified or confidential information.

Because the proceedings are based at Guantánamo and are open only to a select number of journalists, military personnel and NGO observers, continuing access to these proceedings by knowledgeable and experienced reporters – such as the four here – is even more important than it would be in an ordinary federal trial, open to the general public.

We urge the Department of Defense to reconsider what we believe is an ill-advised decision to exclude these reporters.

Thank you for your consideration.

Sincerely,
Human Rights First
Human Rights Watch
Amnesty International
American Civil Liberties Union
National Institute of Military Justice
cc: Douglas Wilson, Asst. Sec. of Defense for Public Affairs
Bryan Whitman, Deputy Assistant Secretary of Defense for Media Operations
Vice Adm. Bruce McDonald, Convening Authority, Military Commissions

Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

In February 2004, Ubrahim Ahmed Mahmoud al Qosi was charged with conspiring with al Qaeda in Afghanistan, Pakistan and elsewhere to attack and murder civilians and destroy property. The government claimed that al Qosi was an armed guard and driver for Osama bin Laden going back to 1996, provided logistical services and supplies for an al Qaeda compound in Kandahar, and traveled to to Kabul to fight with an al Qaeda mortar crew near the front lines.

Al Qosi was never tried on those charges, however, because in 2006 the U.S. Supreme Court declared the military commissions unconstitutional and a violation of the Geneva Conventions. Congress re-created the commissions with a new law later that year, and Al Qosi was charged again in 2008.

[Law]Then in January, just after President Barack Obama took office, he suspended the 2006 military commissions while he decided what to do with them.

Now, about a dozen military commissions cases that were left in limbo are being revived. And, the government is sending more suspected terror cases for trial there – either at Guantanamo Bay, where they’re currently located, or in Thomson, Illinois, where they could be moved. Judging from recent protests against sending the suspected co-conspirators of the September 11 attacks to civilian trials, some might think that convicting terror suspects in a military commission would be easier. But the new Military Commissions Act, passed by Congress in October and signed by the President, is an untested military system that, like its earlier incarnations, is ripe for constitutional challenge. Whether it will provide the swift justice the Obama administration and others hope for remains to be seen.

The case of al Qosi, now being heard before the new military commission, highlights the sorts of problems that lawyers say are likely to come up in many military commissions trials. Most importantly, they include a range of constitutional challenges to the new military commissions law itself, from whether its jurisdiction inappropriately extends beyond war crimes to include ordinary criminal acts, to whether the law’s permissiveness about the use of hearsay evidence against terror suspects violates their rights to confront and cross-examine the witnesses against them.

Although the case has been pending for almost six years now, at a hearing earlier this month, the government announced for the first time that it wanted to add more charges against al Qosi alleging he participated in a conspiracy with al Qaeda dating back to 1992. That’s also the date that Osama bin Laden allegedly began urging others to attack the United States, according to a U.S. criminal indictment of bin Laden. If the government can show that al Qosi participated in the conspiracy dating back to that time, then he could be held responsible for all of the crimes it committed between 1992 and 2001, when he was captured.

“That’s the way the conspiracy charge works,” said Andrea Prasow, senior counterterrorism counsel for Human Rights Watch, who attended the military commission hearing at Guantanamo Bay in al Qosi’s case earlier this month. “You don’t need to have participated in all of the acts that the conspiracy carried out.”

Advised of the four years’ worth of new charges only hours before the government sought to add them, Navy Cmdr. Suzanne Lachelier, al Qosi’s lead military defense lawyer, protested, calling them “sweeping changes” that would require al Qosi’s defense team to travel to Somalia, Ethiopia and Chechnya to prepare for a trial.

At the hearing, the judge rejected the government’s request to add more charges to the current case against al Qosi, but said it could withdraw the case and refile it with those new claims. If prosecutors do that, however, it will only highlight one of the tenuous bases for the new military commissions, which is its broad jurisdiction.

The crimes the government wants to add in al Qosi’s case did not even take place in the United States or against it. But under the new Military Commissions Act, they can be considered part of a larger conspiracy to attack the United States, and al Qosi’s support for al Qaeda in that period can be considered a war crime.

“It’s absurd in these circumstances,” said Prasow. “But in a conspiracy, the action that the defendant has to take doesn’t need to be criminal. It can be cooking for people, as long as you have a meeting of the minds of all the participants. The government will argue that joining al Qaeda is a meeting of the minds, and a joining of the intent to carry out bad things.”

“We are breaking new ground,” conceded Navy Cmdr. Dirk Padgett, the military commissions prosecutor, at the hearing, according to a blog post Prasow wrote from the hearing at the time. Prasow says the prosecutor defended his bid to reach back to 1992 because “the planning, the conspiracy began years before.”

But are conspiracy to attack and providing substantial support for those attacks even war crimes prosecutable by military commission? That’s not at all clear.

Lachelier last year moved to dismiss the case against al Qosi on the grounds that neither of these charges have traditiionally been considered war crimes, so the military commissions don’t legitimately have jurisdiction to prosecute them.

In fact, that could pose a serious problem for this latest incarnation of the military commissions, as even the Justice Department has acknowledged. In July, Assistant Attorney General David Kris testified before the Senate Armed Services Committee that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

Congress enacted the Military Commissions Act of 2009 with its broad jurisdiction anyway, and despite senior Justice Department officials’ own doubts, the government is proceeding to prosecute al Qosi for conspiracy and providing “material support” to al Qaeda. Those charges “continue to fly in the face of traditional understandings of law of war violations,” wrote Devon Chaffee, advocacy counsel for Human Rights First, in a blog post she wrote after attending the al Qosi hearing.

Indeed, when the MCA was enacted in October, civil liberties and human rights group objected in large part because it swept into untested military commissions with unknown rules ordinary crimes that have been successfully tried and appropriately belong in federal court.

Now, it’s not clear what is legitimate in the newly reconstituted commissions. “You don’t know what law applies,” Lachelier said of the military commissions. “You pick and choose. You try to draw from international and federal precedent.” How the commissions will use those remains unclear, however.

Another potential challenge to any conviction by the commissions, Lachelier explained, is that the military commissions allow the use of hearsay testimony in circumstances where it would be inadmissible in a federal court. That, too, could become a constitutional problem if convictions are appealed. “The right to confrontation is still significantly diminished in the military commissions,” Lachelier said, referring to the right to the Constitution’s Sixth Amendment right to confront and cross-examine witnesses. If the government claims the witnesses are not available, “these could be trials on paper,” she said.”That’s not what the confrontation clause and the Supreme Court would allow.”

Recently, Lachelier filed four more motions in al Qosi’s case. She claims that the military commission lacks jurisdiction over her client because the prosecutor hasn’t proved he’s an “unprivileged enemy belligerent” — meaning he was a member and substantial supporter of al Qaeda. She also claims that the Military Commissions Act is an unconstitutional Bill of Attainder, meaning a law designed only to punish a certain group of people (in this case unprivileged enemy belligerents), and that it violates the equal protection clause of the U.S. Constitution because it applies only to aliens (non-citizens).

Many of these claims have been made in military commission cases before. But since this is a new commission with no binding legal precedent, it will have to decide these issues all over again. “The question is, what law applies?” asked Lachelier. “And how will the commission interpret it?”

Ultimately, it may be the Supreme Court that answers these questions, probably several years from now. And if the court holds that Congress and the President overreached in the MCA of 2009, the government’s prosecution of Mahmoud al Qosi, and any other terror suspects charged before the new military commissions, will have to start all over again.

“These are all still open issues,” said Lachelier. “There are so many moving parts.”

Detainees at the Willacy County Immigration Detention Center in Raymondville, Texas (Delcia Lopez/San Antonio Express-News/ZUMA Press)

The number of immigrants in detention in the United States has more than doubled since 1999, according to a new report from a government data research organization released Wednesday. The report, based primarily on information obtained through the Freedom of Information Act from the Immigration and Customs Enforcement agency, also finds that ICE has increasingly transferred detainees more often and to facilities farther from where they were apprehended, disrupting contact with family members and attorneys attempting to represent them in their deportation cases.

[Immigration]ICE detains people suspected of violating civil immigration laws, not criminal laws. Still, in fiscal year 2009, ICE imprisoned 369,483 immigrant detainees — more than twice the number it held in FY 1999. In fact, according to an October report from ICE, the agency now operates the largest detention and supervised release program in the country. Although the average length of detention is 30 days, that includes those apprehended at the border and sent home within a day, which is about 25 percent of detainees. According to ICE, about 2100 immigrants are detained for a year or more.

The swelling of the immigrant detainee population is the result of changes in the law and increasingly aggressive enforcement measures. In 1996, Congress changed the immigration law to require the detention of certain categories of immigrants, such as those convicted of crimes, including misdemeanors, and all applicants for asylum. These immigrants are not entitled to a bond hearing, as criminal defendants are, to determine whether they’re actually a flight risk. According to a recent ICE review of the detention system, only eleven percent of immigrant detainees in custody had committed violent crimes. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the recent ICE report found.

More recently, ICE has also stepped up enforcement of the civil immigration laws, expanding two controversial programs in just the past year that has led to a growing number of immigration detentions. The 287(g) program, named for the section of the immigration law that authorizes it, allows local law enforcement to arrest and detain anyone suspected of violating federal immigration laws. ICE has also expanded a program called Secure Communities, started by the Bush administration, which requires local police to check the immigration status of everyone booked into a local jail. Before trial or conviction, all suspects are fingerprinted and their identifying information is sent to ICE to determine their immigration status. (ICE maintains fingerprint data on all individuals who have had contact with immigration authorities.) Undocumented immigrants can eventually be deported, regardless of whether they are convicted on criminal charges.  Those convicted are deported after serving their sentences. DHS, which recently received $200 million to expand Secure Communities, has estimated that “tens of thousands” more immigrants will be deported under the Secure Communities program next year.

“As programs like that are implemented across the country the need for ICE to develop a risk assessment tool becomes increasingly important because the number of people who will be entering the enforcement system is going to grow exponentially,” said Jackie Esposito, policy director for the Detention Watch Network. “It’s a human rights issue and a due process issue, that people should not be detained without an individualized determination as to their custody status. But it’s also becoming a management necessity for ICE to really take a hard look at its detention population and start making decisions about who needs to be detained.”

ICE itself has acknowledged the problem, and in an October report from Dr. Dora Schriro, former Director of the Office of Detention Policy and Planning, she concludes that ICE needs to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.

Esposito acknowledges this, but says that “it’s unclear what the status of those efforts are and how widely implemented such a reform will be. At this point we have not seen any evidence that a risk assessment tool is going to replace the current practices in the field across the country.”

Judy Rabinovitz, Deputy Director of the American Civil Liberties Union’s Immigrants Rights Project, said that ICE’s focus so far has been on the conditions of detention. “That’s really important, but that’s not questioning the fundamental principle of, why are we locking so many people up?” In addition to the human cost, she noted, there’s a huge economic cost.

The other problem with the growing number of detainees is that there’s insufficient capacity at many detention centers to house them. As a result, ICE has increasingly transferred detainees multiple times to different facilities, often far from where they were apprehended. “Ten years ago only one out of twenty detainees experienced multiple transfers,” the TRAC report finds. “In FY 2008 one out of every four detainees (24%) was subject to multiple transfers.”

The consequences, notes Human Rights Watch, which released its own report today assessing the impact of transfers, can be devastating.

One detainee told Human Rights Watch that after living in upstate New York for 10 years with his wife and four children, ICE said he was deportable because of an old marijuana possession conviction, for which he had paid a fine and never served jail time. Detained in New York City, he was sent, just days later, to a detention center in New Mexico. “In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico,” he said from the Otero County Processing Center in Chaparral, New Mexico in February. “All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York … But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.”

Rebecca Schreve, an immigration lawyer in El Paso, Texas, told Human Rights Watch researchers that detainees “are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what state they are in….I have taken calls from seriously hysterical family members—incredibly traumatized people—sobbing on the phone, crying out, ‘I don’t know where my son or husband is!’ “

The recent ICE report acknowledges that attorneys representing detainees have complained that their clients are often transferred to detention centers far away and without notice, making legal representation extremely difficult. The report therefore only recommends that those who are represented by attorneys “should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.”

On Wednesday, ICE responded to the TRAC and Human Rights Watch reports. “ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency,” says the agency’s statement. “ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”

This story was updated to include a response from ICE.

Glenn Greenwald has pointed out the irony of Republicans now raising fears of another terror attack simply because the president has decided to prosecute terror suspects in a way that’s consistent with American values.

But some important points are being drowned out by the hysteria. Retired Adm. John Hutson, now the dean of Franklin Pierce Law Center, yesterday observed that “there’s no particular reason to believe that if terrorists are going to take vengeance on the US for prosecuting these people, that that’s going to happen at the location or at a hard target.” A federal supermax prison or high-security New York City jail is actually “the least likely place for vengeance to be taken,” given the obstacles presented by all the security, he said on a conference call organized by Human Rights First. “The logical consequence of that stream of logic is that we not prosecute them at all to avoid some form of retribution.”

The other point largely overlooked is that while Attorney General Eric Holder announced plans to try the alleged 9/11 plotters in federal court, he also announced that the suspected USS Cole bomber, among others who’ve attacked U.S. soldiers or military targets, would be tried in the newly reconstituted military commissions. So are they getting a lesser trial?

“Despite the changes enacted by Congress this year, that untested system does not have the track record of fairness and justice that our criminal justice system has,” said Sen. Russell Feingold (D-Wis.) yesterday, after praising the decision to try KSM and his alleged co-conspirators in federal court.

Col. Morris Davis, the former chief military prosecutor for the commissions, made this important point Sunday in The Wall Street Journal: having two different justice systems “establish[es] a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

Another former military prosecutor, Lt. Col. Darrel Vandeveld, who resigned his post in protest last September, echoed that yesterday. “To say that you’ve achieved the gold standard for certain defendants by holding their trials in federal courts, and the rest can go to Gtmo, doesn’t necessarily resurrect the image of Gtmo or the military commissions as beacons of fairness. And if one of the stated goals in closing Gtmo is to restore America’s moral position in the world, the decision taken today won’t get us closer to accomplishing that.”

Holder’s justification for trying the Cole bomber and others by military commission is that in each case, their targets were a U.S. soldier or military installation. But isn’t that what we use our regularly constituted military courts for? Isn’t that why Major Nidal Malik Hassan, who last week apparently shot up 13 soldiers at the Fort Hood military base, is being tried by court martial? The only difference would appear to be that the suspects headed for military commissions are not American citizens. So that’s why they get an inferior justice system?

That decision combined with the implicit acknowledgment in Holder’s  announcement yesterday that U.S. federal courts a superior form of justice to the military commissions just highlights a question that’s becoming increasingly difficult to answer:  Just what is the purpose of those new military commissions?

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.

Conservatives had warned against using the annual pro-Palestinian march, known as Quds Day, as an excuse for renewed protests against Mr. Ahmadinejad, whose disputed re-election in June plunged Iran into its worst internal crisis in three decades.

But the protesters turned out anyway, often walking alongside larger groups of state-sanctioned marchers bearing huge banners denouncing Israel. The protesters even flouted Iran’s support for pro-Palestinian militants, chanting “No to Gaza and Lebanon, my life is for Iran.” And when officials shouted “death to Israel” through loudspeakers, protesters derisively chanted “death to Russia” in response.

When Ahmadinejad comes to New York next week for the United Nations General Assembly, Human Rights Watch and the International Campaign for Human Rights in Iran will hold a demonstration Monday at 4 p.m. across the street from U.N. headquarters, featuring “a recent victim of torture and rape who was detained in post-election unrest in Iran,” according to a press release.