On Torture and Forcible Deportations from Guantanamo

Every once in a while, a commenter at one of my articles at Firedoglake writes a comment that deserves wider recognition, and longer shelf-life, because it deepens coverage of the story or adds something special and important for the reader's consideration. That's the case with powwow's comment from my Firedoglake story the other day on the Obama administration's forcible deportation ("refoulement"), against all international law and precedent, of Algerian national and Guantanamo detainee Farhi Saeed bin Mohammed (reposted here at Invictus).

It was the Obama's second such unlawful deportation from Guantanamo in the last six months. While human rights groups took notice and protested, the story dropped into the black hole of current American indifference to the torture story. I'd add that FDL commenter, ondelette, at the same story also added a great link to the ICRC document, Transfers of detainees: legal framework, non-refoulement and contemporary challenges (PDF), where, as she explains, the document shows "how the doctrine came to be, and where it occurs in the laws of war as opposed to Human Rights Law (which is important in this case)."

Powwow's comment:

Well, it inexplicably took six months, but the other shoe has indeed dropped, just where the Supreme Court cleared the way for it to fall...

Tellingly, too, right after the Supreme Court granted the DOJ a last-minute month-long extension of time in which to file its response to Farhi bin Mohammed’s attempted challenge of the U.S. government’s handling of his imprisonment and then-pending release after more than eight years of his unlawful detention by two U.S. presidents. [What's the hurry, eh, Supreme Court? Must be some more corporate favors you can do instead, in the carefree interim...]

Thank you so much for covering this, Jeff. I was hoping that you’d be on the case, and you didn’t disappoint. Your evidence of Congressional complicity in these acts is key to understanding where responsibility for them lies.

…the Pentagon presented “evidence” from unreliable informers to frame Mr. Mohammed as a supporter of Al Qaeda. Presumably, Judge Kessler was unimpressed by this evidence. - Jeff

“Unreliable informers” such as, primarily, the tortured British resident Binyam Mohamed, about whose “evidence” Judge Gladys Kessler minced few words, stating in her November, 2009 habeas decision ordering the release of Farhi bin Mohammed (a release order which the Obama administration did not appeal, but failed to honor until more than a year later, and then only by forcing the detainee to move to Algeria against his will):

In October of 2008, the Government dropped allegations that [witness against bin Mohammed] Binyam Mohamed was involved in any bomb plot.
[...]
In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause [of the Fifth Amendment] because such admissions would run contrary to “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”
[...]
First, Binyam Mohamed’s lengthy and brutal experience in detention weighs heavily with the Court.
[...]
The difference, of course, is that Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
[...]
In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [censored]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being re-interrogated by Special Agent [censored]. See JE 72 (declaration of Binyam Mohamed’s attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005)
[...]
In Bagram, he [Binyam Mohamed] wrote that he trained with three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner [Farhi bin Mohammed] for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed “dominated the mind” of Binyam Mohamed to such a degree that his later statements to interrogators are unreliable.
[...]
Without Binyam Mohamed’s statements implicating Petitioner in training, the Government’s evidence supporting this allegation is severely weakened.

A glimmer of genuine U.S. justice for Farhi bin Mohammed. And then…

After the granting of his habeas petition, [bin Mohammed] fought a repatriation to Algeria, for the reasons stated earlier, and Judge Kessler granted that request. - Jeff

To her enormous credit, Judge Gladys Kessler took heed of Farhi bin Mohammed’s plea not to be further renditioned by the U.S. government, this time from eight years in a Guantanamo lock-up to a native country he’d voluntarily left behind him more than twenty years earlier for fear of his safety.

It was Kessler’s honorable concerns about the fate of this unjustly-held prisoner, which the United States Department of Justice headed by Eric Holder quickly appealed, and D.C. Circuit Appellate Judges Thomas Griffith, Brett Kavanaugh and (mostly) David Tatel in response quickly spurned, while hiding behind secret court filings, soon followed by Justices Alito, Kennedy, Roberts, Scalia & Thomas, who immediately concurred in telling the district court judge: Take a flying leap, Judge Kessler. No, you won’t test the State Department’s “boilerplate” representations about the future of Petitioner in Algeria, because we won’t let you. The predictable result, six unexplained months later, was this week’s rendition to Algeria, by the U.S. government, of Farhi bin Mohammed, the Convention Against Torture be damned.

This is how Judge Gladys Kessler conscientiously expressed her concerns last year, on June 10, 2010, in response to bin Mohammed’s plea not to be sent to Algeria:

On June 1, 2010, Petitioner [Farhi Saeed bin Mohammed] filed an Emergency Motion to Compel Compliance With This Court’s [Habeas Release] Order of November 19, 2009 and For TRO [Temporary Restraining Order] and Injunction Against Transfer of Petitioner to Algeria. The matter is now fully briefed.

In its Opposition to the Motion, the Government relies heavily on the representations made in three declarations, one of which was submitted ex parte so that Petitioner has not had an opportunity to read it, of Daniel Fried, the Special Envoy for the Closure of the Guantanamo Bay Detention Facility. Two of those declarations appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions (including Petitioner’s) filed before Judge Thomas F. Hogan of this Court, for an injunction against the transfer of certain petitioners held at Guantanamo Bay to other countries, including Algeria.1 Moreover, both of those two declarations are relatively old in that one was filed on July 9, 2009, and the second was filed on November 25, 2009. Obviously, the first two declarations are more than six months old. The classified ex parte declaration was filed much more recently.

Petitioner [bin Mohammed] has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.

These allegations are of great concern. It is essential that the representations of the United States Government that it has received assurances from the Algerian Government that any Guantanamo Bay prisoner who is transferred to that country will receive “humane treatment and treatment in accordance with the international obligations of the foreign government accepting transfer” be tested. November 25, 2009 Decl. of Special Envoy Fried at ¶ 6. Given the centrality of those representations and assurances to the future of Petitioner and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.

Unlike his D.C. District colleague Judge Kessler, Judge Reggie Walton shamefully (if secretly) did not heed a similar plea at about the same time from fellow Algerian and Guantanamo detainee Abdul Naji.

Naji, who quickly thereafter received the same treatment from the D.C. Circuit and the Supreme Court as bin Mohammed, was thus, as Jeff reported at the time, the first forcible rendition out of Guantanamo by the Obama administration, six months ago, in July, 2010 (not in 2002, as Jeff inadvertently wrote above in this post), without benefit of any habeas corpus order on the merits of his case. Last summer, as reported by Josh Gerstein, this was the reaction of David Remes, attorney for both men, to the forcible transfer of Naji to Algeria – a reaction that applies equally today to the D.C. Circuit-contrived, Supreme Court-blessed, Obama administration-effected refoulement this week of Farhi bin Mohammed, an unlawful U.S. prisoner for the last eight years, to Algerian custody:

“It’s tragic, the human dimensions here,” an attorney for Naji, David Remes, said early Saturday. “The court wouldn’t even pause long enough to consider the claims of these men who face torture or death if they return to Algeria. Our only recourse now is diplomatic and political and that’s by no means a sure thing.... We have reason to believe that the military will transfer these men as soon as Sunday or Monday. The Supreme Court has left them to the awful fate that awaits them.”