July 23, 2010

From the ACLU series, Justice Denied

And as if we haven't already destroyed this man's life, it just gets worse:

On Monday, the Pentagon announced that two prisoners had been released from Guantánamo. Abd al-Nisr Mohammed Khantumani, a 50-year old Syrian (also known as Abdul Nasir al-Tumani) was given a new home in Cape Verde, a former Portuguese colony off the West African coast, while Abdul Aziz Naji, a 35-year old Algerian, was repatriated to Algeria.

(T)he focus must be on the legal maneuvering that led to the repatriation of Abdul Aziz Naji, because, for the first time in Guantánamo’s history, a prisoner has been sent home against his will, even though Doris Tennant, one of his lawyers, told the Washington Post two weeks ago that he was “adamantly opposed to going back.” At the weekend, another of his lawyers, Ellen Lubell, told the Miami Herald that Naji “fears extremists will try to recruit him — associating him with Guantánamo — and will torture or kill him if he resists.” She added, “He has nothing against the Algerian government, but he fears that the government will be unable to protect him from Algerian extremists.” In a press release, the Center for Constitutional Rights explained that Naji “fled various forms of persecution in Algeria many years ago, including having been attacked by an extremist.” CCR also sounded a note of caution about how the Algerian government will receive Naji, stating, “we are deeply concerned that he will disappear into secret detention.”

These are valid concerns, as Algeria has a poor human rights record. Amnesty International, Human Rights Watch and the United Nations (PDF, pp. 108-9) regularly express concerns about the use of torture in Algeria, and in its 2009 report on human rights in Algeria, the US State Department noted, “Local human rights lawyers maintained that torture continued to occur in detention facilities, most often against those arrested on ‘security grounds.’”

In contrast, an Obama administration official, speaking anonymously, told the Washington Post two weeks ago, “We take some care in evaluating countries for repatriation. In the case of Algeria, there is an established track record and we have given that a lot of weight. The Algerians have handled this pretty well: You don’t have recidivism and you don’t have torture.” This was a bold statement to make, in light of the allegations made by NGOs and the UN, and concerns about torture or other ill-treatment were not diminished by a response to the news of Naji’s repatriation in Monday’s Washington Post, in which it was noted that “The government said that Algeria has provided diplomatic assurances that Naji would not be mistreated, assurances that administration officials say are credible because 10 other detainees have been returned to Algeria without incident.” The problems with this statement concern the “diplomatic assurances,” and the claim that 10 men have been repatriated “without incident.” On the “diplomatic assurances,” Human Rights Watch explained in a press release that its own research “has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment,” and, on the status of the 10 men returned, although there have been no allegations of torture, there has been very little information at all about the conditions in which they have been held, and what has emerged publicly is not reassuring, as it reveals both prolonged pre-trial detention, and calls for punitive sentences from the prosecutors.

As much as it hurts me to say this, the Bush administration was far more humane on the issue of repatriating Guantanamo detainees back to areas where they might be tortured--known as "non-refoulement", as evidenced by the care they took with the Uighurs. Ironic, considering the callousness with which they treated them while in detention.

The long history of the authorities grappling with the “non-refoulement” obligation at Guantánamo began with the Uighurs, 22 Muslims from China’s oppressed Xinjiang province, who were mostly seized in Pakistan in December 2001 after crossing from Afghanistan, where they had been living in a run-down settlement in the Tora Bora mountains, thwarted in their attempts to travel to Turkey or Europe in search of work, or nursing futile hopes of rising up against their only enemy, the Chinese government.

With the Uighurs, the Bush administration recognized its “non-refoulement” obligation, refusing to return them to China, and finding new homes for five of the men in Albania in 2006. When the Obama administration inherited the problem of the remaining 17 men, who had, in the meantime, won their habeas corpus petitions, it found new homes for 12 of them in Bermuda, Palau and Switzerland, although five still remain at Guantánamo, and, last spring, the administration turned down a plan by White House Counsel Greg Craig to bring some of the men to live in the US, which would have done more in the long run to defuse scaremongering about Guantánamo than any other gesture.

The issue of closing Guantanamo, a promise which many liberals relied on Obama fulfilling shortly after taking office has been unquestionably a minefield of legal and ethical considerations. It's just another black mark on the Obama presidency.

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