The issue in Kiyemba v. Obama is whether the courts have the power to order an “alien” (non-U.S. resident) detainee held at Guantanamo Bay released into the United States, after determining the government has no grounds to keep holding him. But what if Congress then makes it impossible for the government to release the prisoner in the United States by withholding all necessary funding? Two separate bills signed yesterday — specifically, Sec. 1041 of the National Defense Authorization Act and Sec. 552(a) of the Homeland Security appropriations bill — appear to do just that. As Denniston points out, those laws open up a key question about Congress’ constitutional powers. In effect, it would mean that Congress could effectively suspend the prisoner’s right to habeas corpus – that is, to be released from unlawful detention.

Of course, by the time the court gets around to hearing the case this winter, President Obama may have already announced a new detainee policy, and Congress may have agreed to alter its spending restrictions. And if the Uighurs are all resettled, their case before the high court will be moot. But if the case survives until late winter, when the Supreme Court is expected to hear it, the administration and Congress may both get slapped down.

The court had previously put off deciding whether to take this case, at the request of the Obama administration, which was scrambling to find places for the Uighurs to go. But although several countries, including most recently the island of Palau, has agreed to take some of the Uighur detainees, at least one remained without a place to go. His brother, also detained, said he would not leave him.

In April, the U.S. Circuit Court of Appeals in Washington, D.C., ruled that even though the Uighurs were no longer considered dangerous and were being held unlawfully, the courts had no power to order the president to release anyone into the United States. Because the Uighurs cannot return to China, where they would likely be persecuted, and the U.S. government refused to release them in the United States, that left them stuck at the Guantanamo Bay prison indefinitely.

The Supreme Court now has the chance to decide whether federal courts have the power to change that.

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.

The court yesterday also put off deciding whether the U.S. government has to release photos of detainee abuse, as the American Civil Liberties Union is arguing in its Freedom of Information Act case against the Defense Department.  The court could decide whether to hear that case on Oct. 9.

SCOTUSblog has listed here all ten cases the court yesterday decided to review.

A task force set up when Obama took office is reviewing each case, and the administration has started posting the names of those cleared for release at the prison camp, according to a spokesman for the Guantanamo prison.

Although President Obama when he took office set a Jan. 22 deadline for shutting down the prison, Defense Secretary Robert Gates acknowledged to ABC News on Sunday that “it’s going to be tough” to meet the deadline. Recent news reports have suggested that the deadline may be impossible to meet.

Despite the list of 78 prisoners deemed free to go (the list included three already released), many of them, such as the prisoners originally from Yemen, have been “cleared” for months or even years, but have not yet been returned home, despite eight years in captivity without charge. The Obama administration has been reluctant to return prisoners to Yemen because it does not trust the Yemeni government’s ability to prevent them from joining al-Qaeda-sponsored terrorist groups.

Reuters reports that the prisoners on the latest list include, in addition to the Yemenis, the 13 Uighurs still imprisoned (Palau has agreed to accept 12 of them), plus “nine detainees from Tunisia, seven from Algeria, four from Syria, three each from Libya and Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan.”

The first and better-known case involves whether the executive branch has the right to refuse to release photos of detainees abused by U.S. officials in overseas prisons simply because it fears the photos could spark violence against U.S. troops. Lawyers for detainees, such as American Civil Liberties Union attorney Amrit Singh, have insisted that the photographs “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” and therefore their disclosure is “critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

Meanwhile, Republicans and others have argued that the photographs’ release “will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform,” as Sens. Lindsey Graham (R-S.C.) and Joseph Lieberman (I-Conn.) wrote to President Obama in May. Days later, Obama announced that he had changed his mind and decided not to release the photos, although he’d previously agreed to turn them over. Whether potential “harm” to the troops by unspecified persons abroad is sufficient to trump the public interest in access to information embodied in the Freedom of Information Act is the question the Supreme Court will consider, if it decides tomorrow to review the case.

The second big terror-related case questions whether a court can order the U.S. government to release Guantanamo detainees into the United States if the court has already determined that the government has no right to keep holding them and the government has not found anywhere else for them to go. The situation arises in the case of the Chinese Muslim Uighurs, all of whom have all been cleared for release. Although four were released to Bermuda earlier this year, 13 remain imprisoned at Guantanamo Bay because they cannot return to China, where they would likely face persecution. The United States has refused to accept them. The D.C. Circuit Court earlier this year ruled that the courts cannot order them released into the United States; only the president and the Department of Homeland Security have that power.

Perhaps in an effort to keep the issue away from the Supreme Court, the administration last week announced that the Pacific Island nation of Palau had agreed to take most of the remaining Uighur prisoners that have yet to be released. But it did not agree to take one of the 13 prisoners left, who is reportedly mentally ill. He and his brother, then, will remain at Guantanamo. If Palau had taken all of them, their case — and the Supreme Court’s chance to review the president’s authority — would have become moot.

What’s remarkable about both cases is that the Obama administration has taken essentially the same position as did the Bush administration before it. Tomorrow the high court will decide whether it will review and potentially reverse those positions, as it has in several other key rulings that dealt a blow to the Bush administration’s counterterrorism policies regarding executive power and the treatment of war-on-terror detainees.

As the Washington Post reports today, the story is even sadder given that the older brother was only captured because he went searching for Bahtiyar after the younger brother left their homeland eight years ago.

Like the other Uighurs, the brothers are Chinese Muslims who face persecution in China and can’t be returned there. Although they have never threatened nor plotted against the United States, they were seized in Afghanistan and Pakistan shortly after the United States launched its war on al-Qaeda and the Taliban after the terrorist attacks of Sept. 11.

The men being considered are reportedly two Chinese Muslim Uighurs, an Uzbek and a Palestinian. The men the United States has been trying to relocate have all been deemed not to pose any security threat but cannot be returned to their native countries for fear of persecution and torture there.

Ireland, Portugal, France, Albania, the Pacific island nation of Palau and Bermuda have all already agreed to take about a dozen detainees since President Obama took office in January and promised to close the Guantanamo prison by January 2010.

The United States, however, has refused to accept any of the detainees cleared for release on its own soil, including those that U.S. federal judges have ruled were wrongly imprisoned by the United States for more than seven years.

In a related case, the Supreme Court has been sitting on a petition for review filed by lawyers representing Chinese Muslim Uighurs, in which the D.C. Circuit held that federal judges have no power to order any prisoners released into the United States. In both cases, the prisoners fear torture if returned to their home countries, or oppose being transferred beyond the reach of federal law that allows them to challenge their detentions

Lawyers for the detainees are already moving to seek Supreme Court review to prevent their clients’ involuntary transfer. At the same time, lawyers for an Algerian prisoner, Ahmed Belbacha, asked the Circuit Court to hold off his transfer to Algeria, where he fears he’ll be tortured, until the petition to the Supreme Court is filed. Human rights groups have urged the Obama administration to allow such prisoners to be released into the United States instead of sending them to countries where they’re likely to face torture.

]]> http://washingtonindependent.com/58183/federal-court-clears-way-for-forced-transfer-of-gitmo-prisoners/feed 2 http://washingtonindependent.com/55890/obama-defies-federal-courts-in-holding-yemeni-detainees http://washingtonindependent.com/55890/obama-defies-federal-courts-in-holding-yemeni-detainees#comments Fri, 21 Aug 2009 10:00:05 +0000 Daphne Eviatar http://washingtonindependent.com/?p=55890

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

On Monday a federal court judge ordered the Department of Defense to release a 47-year-old father of two with a heart condition who it has imprisoned at Guantanamo Bay for the past seven years without justification. But like the other Yemeni men cleared for release but still held at the detention facility, it’s not clear when or even if Mohammed al-Adahi will get to go free.

Illustration by: Matt Mahurin

Obama administration officials on Wednesday boasted that they’d secured agreements from six European countries to accept Guantanamo detainees, although the United States itself has still refused to free any Guantanamo prisoners on U.S. soil. But since President Obama’s inauguration in January, the administration has not released a single prisoner to Yemen, although that country is willing to have them back and many would be happy to go there. (Some prisoners from other countries, such as the Uighurs from China, cannot be returned to their home countries for fear of persecution.) The administration has not stated its reasons, but said only that the State Department is negotiating with the Yemeni government over the prisoners’ return. At least three Yemeni prisoners since April have won their petitions for habeas corpus in federal court — meaning a judge has ordered that the government must let them go. (The government has cleared for release an unknown number of others.) So far, though, the Obama administration has not complied with those court rulings.

The United States has long been reluctant to return Guantanamo detainees to Yemen, where al-Qaeda is believed to be active. As a result, of about 550 prisoners released from Guantanamo by Bush officials, only 14 were from Yemen. But that trickle has slowed to a complete halt under the Obama administration, despite court rulings that the government hasn’t shown the men have done anything wrong or present any security risk.

Nearly 100 of the remaining 223 detainees at Guantanamo Bay are from Yemen. A government official on Wednesday said that negotiations are ongoing. Now that two U.S. federal courts have ordered at least three Yemeni prisoners freed, however, it’s not clear under what power the United States can continue to hold them.

“We appreciate that the United States has security concerns about Yemen, but continuing to hold these men without charge is morally wrong, is in violation of court orders, and it’s handing al-Qaeda a recruiting tool,” said Letta Taylor, a researcher for Human Rights Watch who wrote a report on the Yemeni detainees’ situation in March. “It creates its own sets of risks.”

The standoff between the court and the president in the Yemeni prisoner cases is another example of the executive branch ignoring the orders of the federal judiciary. In previous court cases, the government has refused to turn over evidence that it deemed a “state secret,” for example, even after a federal judge ordered the evidence be disclosed.

“The way our system is supposed to work is that if a federal district court orders that a branch of the government do something, they’re supposed to do it,” said John Chandler, a lawyer in Atlanta who represents al-Adahi in his court case and won his order of release on Monday. “I have every hope that they will. But they haven’t done anything yet. And he’s not the first one to be ordered released.”

In April, Judge Ellen Huvelle granted the habeas corpus petition of Yasin Muhammed Basardah, a Yemeni who was known to have provided information — often found to be unreliable — against other Guantanamo detainees. As a result, he faces security risks wherever he’s released.

And in May, Judge Gladys Kessler ordered the release of Alla Ali Bin Ali Ahmed, a Yemeni man arrested seven years ago as a teenager. The Pentagon claimed he was a terrorist based largely on statements from other Guantanamo prisoners whose testimony the judge deemed unreliable, as well as bits and pieces of other circumstantial evidence that Judge Kessler found were too “weak and attenuated” to support his continued detention.
Despite the federal court orders to release them, both men are still at Guantanamo Bay. And many more Yemenis have been cleared for release by the U.S. government, although in a strange twist, the government refuses to say how many and their lawyers are forbidden from divulging this information to the media. Among them is a 38-year-old orthopedic surgeon captured in Afghanistan in January 2002, who the Justice Department announced in March that it had cleared for release. Two more Yemeni prisoners at Guantanamo apparently committed suicide, according to the government.

“The government is designating the very fact of approval for transfer ‘protected’ information, meaning it can’t be disclosed to anyone who has not committed to obeying the protective order – which in turn prohibits the disclosure of ‘protected’ information,” explained David Remes, Executive Director of the nonprofit group Appeal for Justice, and a lawyer representing more than a dozen detainees from Yemen. “All of us are fighting that ["protected"] designation in our cases.”

Al-Adahi, who won his order of release on Monday, was captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. Because he was on a bus that also carried some wounded Taliban soldiers, the Defense Department claimed he was working for the Taliban and sent him to Camp X-Ray at Guantanamo Bay in January 2002.

An oil worker who lived in Yemen, Al-Adahi was originally suspected of acting as Osama bin Laden’s bodyguard, but he has consistently maintained his innocence. In June, he testified to a closed federal courtroom via video camera from Guantanamo, where he was chained to the prison floor and sweating in the Caribbean heat. Al-Adahi talked about his high blood pressure, and Guantanamo officials have confirmed he has heart problems.

According to declassified portions of the transcript, Al-Adahi testified that he was introduced to Osama bin Laden during the summer before the September 11, 2001 terrorist attacks while he was in Afghanistan, where he was bringing his sister, who the family had arranged to marry a Yemeni man in Kandahar. Bin Laden, then considered the de facto “governor” of Kandahar, was at the wedding celebration. Al-Adahi has consistently maintained that he never worked for bin Laden, and Judge Kessler apparently believed there was insufficient evidence to support the government’s claims. Her written opinion in the case has not yet been declassified, however, so the basis for her findings remain unclear.

“I did not fight the American alliance,” Al-Adahi testified. “I did not deal with Taliban or al-Qaeda. I am a working man in my country. I have never committed a crime.”
The Department of Justice referred questions about the repatriation of Yemeni detainees to the State Department. A State Department spokesman said he cannot comment on the situation of Yemenis who have brought their cases to federal court.

Of the 35 habeas corpus cases heard so far, federal courts have granted the petitions and ordered the release of 29 Guantanamo Bay detainees, finding the government has not produced enough evidence to keep holding them. In addition to the three Yemeni prisoners whose petitions have been granted, the petitions of three others from Yemen have been denied.

Update: Judge Kessler released this unclassified, redacted version of her opinion in the al-Adahi case late on Friday. In the opinion, she says there is no reliable evidence that al-Adahi was ever a member of or fought for al-Qaida or the Taliban, or provided either group any affirmative support.