Guantanamo update

Four Guantanamo detainees transferred to Albania and Spain

The US Department of Justice (DOJ) announced on Wednesday 24 February that four Guantanamo Bay detainees have been transferred to Albania and Spain. Three detainees, Tunisia native Aleh Bin Hadi Asasi, Egypt native Sharif Fati Ali al Mishad, and Libya native Abdul Rauf Omar Mohammad Abu al Qusin, were transferred to Albania and the fourth, an unidentified detainee from the Palestinian territories, was transferred to Spain.

All four had been cleared by military review boards at Guantánamo under the Bush administration, and had then been cleared by President Obama’s interagency Task Force, but, like dozens of prisoners in Guantánamo, they could not be repatriated because of fears that they would be tortured if returned to their home countries or subjected to other ill-treatment, or because they were effectively stateless.

(Click here for more background information on the four detainees).

The transfers, approved with unanimous consent by the Guantanamo Bay Task Force, add to the more than 580 Guantanamo detainees transferred to other nations since 2002. There are still 188 remaining at the Guantanamo facility in Cuba.

Federal judge upholds continued detention of 2 Yemeni Guantanamo detainees

(Jurist) A judge for the US District Court for the District of Columbia ruled  on Wednesday 24 February that the government can continue to hold indefinitely two Yemeni Guantanamo Bay detainees, even though the men had been cleared for release by the Bush administration two years ago.

Judge Gladys Kessler denied the petitions for habeas corpus filed by Fahmi Salem Al-Assani and Suleiman Awadh Bin Agil Al-Nahdi. The men had been notified of their release in 2008, but the decision was suspended when President Barack Obama took office.

Algeria Court acquits former Guantanamo detainee

(Jurist) An Algerian criminal court on Sunday 21 February acquitted former Guantanamo Bay detainee Mustafa Hemlili of charges of counterfeiting and affiliation to a militant group that is active abroad. Hemlili was released from Guantanamo, along with fellow inmate Hederbash Sufian, after a six-year detention period.

The court separated the trials of the two defendants, stating that the only link between them was the date of their release. Sufian’s trial was postponed due to poor health after his lawyers presented evidence showing that he suffers from mental trauma as a result of his treatment at the US naval facility.

Hemlili had traveled with family members to Mali, Saudi Arabia, and Pakistan without a passport before going to the Afghanistan-Pakistan border region to work with an international relief agency assisting Afghan refugees. After the 9/11 attacks, Hemlili was captured in Peshawar, Pakistan, with a forged Iraqi passport.

France high court remands terrorism case against former Guantanamo detainees

(Jurist) The French Court of Cassation on Wednesday 17 February reversed an appellate court decision to overturn the convictions of five former Guantanamo Bay detainees, remanding the case to the lower court. A court spokesperson said the case will be heard by a specially created panel of the Paris appeals court. Regardless of the outcome, it is unlikely the men will serve any additional time in prison.

A lawyer for two of the defendants expressed disappointment in the court’s decision, saying it amounted to a “sinister page in the history of the judicial system” and “a great cruelty on a human level.”

The Paris appeals court overturned the convictions last February, finding that counter-terrorism agents from the French national security service DST could not gather intelligence and conduct a criminal investigation at the same time. The five were originally convicted in 2007 for criminal association with a terrorist organization, sentenced to time already served in Guantanamo, and released.

The men were arrested in Afghanistan in 2001 and charged with attending an al Qaeda training camp. They were later detained at Guantanamo Bay and questioned by French counter-terrorism officials who failed to disclose [JURIST report] the meetings, before being repatriated.

Kiyemba update

(Scotus) On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.  But a two sentence order issued by the Court signaled that new developments may result in the Court never reaching the merits.

The case, Kiyemba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.  The Bush administration declared the group enemy combatants and they were sent to Guantanamo.

Eventually, the administration determined they were harmless, but ran into problems trying to release them.  President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture.  Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.

The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition.  The question became the remedy.  Traditionally, the remedy for habeas corpus is release from confinement.  But release to where?  A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States.  The administration appealed and won in the Court of Appeals for the D.C. Circuit.  That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter.  The Supreme Court accepted to hear the case in October.

Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs.  The Solicitor General wrote to the Court claiming that these developments “eliminate the factual premise” of the case, namely that “the prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,” and therefore the case should be dismissed.

In a brief order, without noted dissent, the Court said the D.C. Circuit Court was to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of…new developments.”  The case is Kiyemba, et al., v. Obama, et al. (08-1234).  The “new developments” are offers to resettle the seven Chinese Muslim Uighurs remaining at Guantanamo.

The Court has ordered supplemental briefing on what effect these developments have.  If the Court determines that it cannot hear the case, there are two routes it could take.  First, it could decide to dismiss the case as improvidently granted (“DIG” in court parlance).  This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes.  However, there is another avenue.  The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions.  Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.

Federal judge dismisses Guantanamo detainee wrongful death suit

(Jurist) A judge for the US District Court for the District of Columbia ruled Tuesday 16 February that claims of unlawful treatment and wrongful death brought on behalf of two former Guantanamo Bay  detainees are barred by the Military Commissions Act of 2006 (MCA).

The two men, Yasser Al-Zahrani and Salah Ali Abdullah Ahmed Al-Salami, were among three detainees who allegedly hanged themselves in their cells in July 2006. The claim was brought against former US defense secretary Donald Rumsfeld and more than 100 military officers and personnel under the Alien Tort Claims Act, which provides that district courts have original jurisdiction to hear claims for torts “committed in violation of the law of nations or a treaty of the United States.”

The defendants moved to dismiss the suit based on section 7 of the MCA, which removes the ability of federal courts to hear challenges to the treatment of aliens who have been “properly detained” as enemy combatants. In the ruling, US District Judge Ellen Huvelle found that since the two men had been properly detained, the court lacked jurisdiction to hear the case.

BBC interviews the Head of Obama’s Guantanamo Task Force

The BBC’s Jon Manel interviewed to Matthew G. Olsen, the Task Force’s Executive Director.

Here some of the main issues discussed by Olsen:

“We have a meeting every Wednesday. We review the cases of the detainees at Guantanamo and try to reach decisions about the appropriate disposition of each detainee.”

“We look at everything that we’re able to obtain that is in the government’s possession. And I should say that one of our initial challenges was collecting all that information.”

We look at the questions of transfer and we look at the questions involving the possible prosecution of detainees.”

Manel then asks if it is a case of determining their guilt or innocence.

“It is more nuanced than that. What we are looking at is ‘can this person be safely transferred out of the United States?’

“‘Can they be transferred to a country that will be able to implement adequate mitigation measures to address any threat the detainee may pose?’ It’s a judgement on risk”.

Publications

“Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court”

“Implications of the Supreme Court’s Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Non-Governmental Perspective,” House Armed Services Committee, July 30, 2008 (published January 2010).

2 Responses

  1. […] treatment of detainees. Last month, a judge for the US District Court for the District of Columbia ruled that claims of unlawful treatment and wrongful death brought on behalf of two former Guantanamo Bay […]

  2. […] to a June request by the Obama administration. The first Guantanamo detainee, a Palestinian, was transferred to Spain in […]

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