NYT: Obama's Deportation of Naji "an act of cruelty that seems to defy explanation"

Cross-posted from Daily Kos and FDL/The Seminal

In an editorial posted by the New York Times on Saturday afternoon, the editorial board condemned the Obama administration's involuntary deportation of a Guantanamo prisoner to Algeria. The prisoner, 35-year-old Abdul Aziz Naji, was cleared of any charges in a wide-ranging review of Guantanamo prisoner status last year. Naji begged not to be sent back to Algeria, a country he fled after being attacked himself at age 17 or 18 by extremists. Naji feared the Algerian government could not protect him against the Islamic fundamentalist rebels that have been fighting the somewhat more moderate Islamic government for some twenty years now.

The Times editorial continues the story:

Though he offered to remain at the prison, the administration shipped him home last weekend and washed its hands of the man. Almost immediately upon arrival, he disappeared, and his family fears the worst.

It is an act of cruelty that seems to defy explanation.

The response of the Obama administration has been terse and self-serving. They say they have gotten assurances from the Algerian government that Mr. Naji, who was never charged with any crime, would not be mistreated or tortured when sent back. The Times notes that a 2008 Supreme Court decision gives "broad discretion to decide when to accept such promises from a foreign government." But human rights groups have long derided such assurances.

According to a diary at Daily Kos by geomoo, Doris Tennant, one of Mr. Naji's attorneys, states she and Naji's other attorney, Ellen Lubell, were informed by the Algerian ambassador "that his government cannot protect him from extremists, who he very much fears will attempt to recruit him because of his association with Guantanamo."

The Times editorial picks up on information about country conditions in Algeria that I had noted in an article at Firedoglake last Tuesday. According to the Times:

The State Department’s human rights report on the country, issued in March, said that reports of torture in Algeria have been reduced but are still prevalent. It quotes human rights lawyers there as saying the practice still takes place to extract confessions in security cases. People disappear in the country, the report said, and armed groups — which obviously made no promises to the administration — continue to act with impunity.

Even more outrageous is the fact that the Obama administration ignored the fact that Mr. Naji had applied for political asylum in Switzerland, denying a request for a stay of deportation from his attorneys. No one knows why the Obama administration has drawn a line in the sand over Naji and another Algerian prisoner, Farhi Saeed Bin Mohammed, who won his "freedom" via habeas appeal last year. Judge Gladys Kessler has been fighting the D.C. Circuit Court to keep the men from being transferred to Algeria, but a 5-3 decision by the Supreme Court late last week paved the way for the administration's criminal action.

"Criminal" or Stupid, Either Way It's Outrageous

"Criminal" will no doubt be too strong a word for many of you. But the forcible deportation of a person back to a country where he fears persecution, torture, execution, etc. is known in the law as refoulement, and the international legal principle of not returning such an individual as the principle of non-refoulement. This recognized basic human right was written into international protocols beginning with the 1951 UN Convention Relating to the Status of Refugees, and later into the Convention Against Torture treaty, of which the U.S. is a signatory. Not even the Bush administration, in the hundreds of "detainees" it released from Guantanamo, violated this principle.

In a comprehensive analysis, journalist Andy Worthington has described the unbelievable context of the Obama administration's cruel behavior:

This was a bleak day for US justice, not only because it involved the Supreme Court blithely disregarding the UN Convention Against Torture’s “non-refoulement” obligation, joining in an unholy trinity with the D.C. Circuit Court and the Obama administration, but also because it brings to an abrupt, cruel, and — I believe — illegal conclusion a struggle to release prisoners without violating the UN Convention Against Torture, which, for the most part, was actually respected by the Bush administration....

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 Center for Constitutional Rights (CCR) decried the Obama administration's forcible removal of Mr. Naji. Mr. Bin Mohammed could also be deported at any time.

CCR supports the ongoing efforts of the U.S. State Department to close Guantánamo Bay, particularly in the face of unyielding resistance from Congress and the seemingly detached indifference of the White House to the continuing plight of the men held in our notorious prison. However, the solution to Guantánamo Bay does not rest on forcing detainees to return to countries where they fear torture and persecution. It is not only illegal, but also bad policy.... Forced repatriations make the United States appear complicit with repressive regimes and are certain to outrage Arabs and Muslims around the world at a time when our government needs their support.

Is There Anything to Be Done?

In a letter the other day to supporters, CCR wrote:

The Obama Administration violated both U.S. and international law by forcibly repatriating Mr. Naji, and Center for Constitutional Rights is now deeply concerned as neither his wellbeing nor whereabouts are known....

Please write the Algerian Embassy in Washington, DC (at mail@algeria-us.org) and the Permanent Mission of Algeria to the United Nations at mission@algeria-un.org and demand that the Algerian government immediately account for Mr. Naji’s whereabouts and well-being. They must tell us where he is and provide assurances that he is well. The Algerian government should also comply with international law prohibiting the use of secret detention and torture. Moreover, the Algerian government must protect Mr. Naji from extremist forces in Algeria who may try to recruit him and harm him when he resists joining them. Finally, the Algerian government should in the future not accept forced repatriations of its citizens who fear they will be harmed in the country.

The court’s decision and the actions of the Obama administration are an outrage and another blow against the international position of non-refoulement, or non-return of refugees and the persecuted, as described in the UN Convention Against Torture and other international treaties and protocols. This action marks the U.S. as an uncivilized nation, a nation busily disassembling the rule of law in the name of empire building.

It's possible that Aziz is a test case, as they will want to release others to countries where they fear persecution. They can let “friendly” governments “dispose” of their prisoners. I also believe it’s possible they intend to seed some small number through as possible double agents among the Islamic “extremist” groups, and this is one way to manufacture bona fides after being held so long. A very dangerous game for everyone involved.

It's noted above that Switzerland has taken up an application for asylum from Mr. Naji (it is, I believe, on appeal there). The simplest solution would be to offer Mr. Naji, who never harmed any U.S. person, asylum in this country, but as FDL/Seminal diarist powwow notes in a comment at Emptywheel yesterday:

For other Bill-of-Attainder-esque reasons, the following Congressional restrictions also deserve highlighting:

The Homeland Security Appropriations Act includes two additional provisions affecting the treatment of Guantanamo detainees. Section 553, which appears to apply beyond the end of the 2010 fiscal year.... prohibits the use of funds appropriated under that act to “provide any immigration benefit” to any former Guantanamo detainee, including a visa, admission into the United States, parole into the United States, or classification as a refugee or applicant for asylum.51 The prohibition is similar to proposals introduced earlier during the 111th Congress; however, the other proposals would apply permanently, whereas the prohibition in the Homeland Security Appropriations Act appears to apply only to funds appropriated by that act.52

In any case, if they can get away with the criminal return of Aziz Naji without popular furor, then they can proceed with more of the same. This was all prefigured when al-Libi — the man who told the U.S. about Saddam and WMD (under torture — he later recanted the “confession”) — was mysteriously found dead in his Libyan cell and there was no call for investigation.

Don't Ignore This Issue

Thus far the Daily Kos community has essentially ignored the outrageous Naji deportation (the diary by geomoo was a notable, but mostly ignored exception). I hope this diary begins the rectification of that. The New York Times editorial reminds us there is "no reason to deliver prisoners to governments that the United States considers hostile and that have a record of torture and lawlessness."

Call the White House: 202-456-1111, or write them if you wish. Let them know there is line beyond which support for this administration ends, and the forceable return of an innocent prisoner, tortured and imprisoned for eight years by the United States, to a country he fled over 15 years ago, in fear for his life, is exactly such a line.

Pentagon Hiding Torture Evidence from Obama

Originally posted at Daily Kos

In a shocking revelation just posted at UK Guardian, Binyam Mohamed's attorney Clive Stafford Smith, who is also director of the legal charity Reprieve, reports that "substantial parts" of a memo, attached to a letter to Barack Obama, documenting evidence of Mohamed's torture at the hands of CIA agents and their extraordinary rendition proxies, were blanked out so the president could not read them. Who did that?

US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner's lawyer said last night, as campaigners and the Foreign Office prepared for the man's release in as little as a week....

Stafford Smith tells Obama he should be aware of the "bizarre reality" of the situation. "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command."

Smith's letter to Obama can be read here (PDF).

Scott Horton at Harpers reviewed the known and published history of Binyam Mohamed in a column today criticizing the Obama administration's decision to use "state secrets privilege" in arguments before the Ninth District Court of Appeals in order to dismiss a lawsuit by Mohamed and four others against Jeppesen Dataplans, Inc., the aircraft company that worked with the CIA on the latter's extraordinary rendition program.

Binyam Mohamed is a 30-year-old Ethiopian who was granted political asylum in Britain in 1994. In 2002, he was seized by Pakistani authorities and turned over to American intelligence officials in connection with the Bush Administration’s extraordinary renditions program. He was shuttled between CIA-operated facilities in Afghanistan, Pakistan and Morocco. During this period of American-sponsored detention, according to court papers, Binyam Mohamed was “routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution, and death.” He is now reported to be close to death in a prison cell in Guantánamo.

In his letter to Obama, dated February 9, 2009, Smith wrote (I have transcribed from the PDF -- and a big H/T to skdadl at FDL/Emptywheel.):

Dear President Obama:

I am writing with great urgency concerning the rendition and torture of a Guantanamo Bay prisoner represented by our charity. His name is Binyam Mohamed, and he is a British resident.

You will doubtless have been informed about Mr. Mohamed's torture -- he was abused in truly medieval ways over a period of more than two years in Pakistan (at the behest of the US), then again in Morocco (where he had been rendered by the CIA), and then in the Dark Prison in Kabul.

There has been a firestorm in the media of our closest ally, the United Kingdom because, according to two British judges, the Bush Administration "threatened" to withdraw national security cooperation with the UK if the judges ordered the release of materials concerning the torture of Mr. Mohamed in US custody.

The British judges bowed to this 'threat'-- but suggested at the end of their judgment that your administration might reconsider the position taken by your predecessors....

Since we, at Reprieve, are US lawyers with appropriate security clearances, we have access to this classified material. We have therefore assembled a memorandum that collates the evidence of torture in question. It is attached.

... for now, to deal with the British judges' request, we are submitting this information to you with no reference to any agent's name, or even the location of the abuse. Thus, as the British judges suggested, there is nothing in the memo that divulges material that should be considered classified.

We are submitting this letter and attachment to the Privilege Review Team established by the Department of Defense to deal with these issues....

If the DOD is unwilling to forward this material to you, then we will send you only what we are allowed to send you -- which will be a copy of this letter and a redacted version of the memo illustrating the extent to which it has been censored.

And the memo was censored. I can't reproduce it here, but you can see it at the link above. But I can tell you that everything is blacked out after the header, a full two pages worth of black paragraphs. The recipient to the memo is also redacted. The title of the memo is "Re: Torture of British resident Binyam Mohamed by US personnel."

What the hell is going on here? Is Obama in charge of the military or not? The Guardian article explains:

It is understood US defence officials might have censored the evidence to protect the president from criminal liability or political embarrassment.

Understood by whom?

This news comes only days after some other news from Guantanamo throws some doubt over who exactly is in control of U.S. military detainee and torture policy.

In an article today, Andy Worthington asks "Who's Running Guantanamo?"

On Jan. 20, the answer to that question seemed obvious. In his inaugural speech, with George W. Bush standing just behind him, President Obama pointedly pledged to "reject as false the choice between our safety and our ideals" – a clear indication that, as he promised in a speech in August 2007, he would dismantle the extralegal aberrations of the Bush administration's "War on Terror"....

President Obama requested the military judges at Guantánamo to call a halt for four months to all proceedings in the military commissions at Guantánamo....

The day after, he signed his first executive orders, stating that Guantánamo would be closed within a year, upholding the absolute ban on torture, ordering the CIA to close all secret prisons, establishing an immediate review of the cases of the remaining 242 prisoners in Guantánamo, and requiring Defense Secretary Robert Gates to ensure, within 30 days, that the conditions at Guantánamo conformed to the Geneva Conventions....

Worthington goes on to describe a struggle within the Pentagon to defy Obama's stay on prosecutions as it pertained to Saudi prisoner Abdul Rahim al-Nashiri. Ultimately, the convening authority of the military commissions at Guantanamo dismissed charges against al-Nahiri, though he is charges can be re-filed again later.

As Bush appointees and Cheney proteges muck around the Pentagon and the Naval Base at Guantanamo, Guantanamo prisoner Binyam Mohamed's attorney, Lieutenant Colonel Yvonne Bradley, reports deteriorating conditions at that facility, with "savage beatings," forced extractions from inmate cells, and forced feedings in an effort to quash a mass hunger strike among inmates. Over 20% of all inmates at the facility are currently on hunger strike.

Worthington concludes:

... although Bradley's account indicates that the crisis in Guantánamo is such that ongoing discussions about implementing the Geneva Conventions should be replaced by urgent intervention to address the prisoners' complaints (and alleviating the chronic isolation in which most of the prisoners are held would be a start), the conditions in Guantánamo have been met with a resolute silence from the Pentagon and the White House.

Will it really take another death in Guantánamo – the sixth – to provoke a response?

We must start asking some serious questions about how the transfer of power is really going. To what degree is the Pentagon and CIA, or elements within these organizations, obedient to the command of the putative commander-in-chief? What will Obama do, if anything, about such blatant flouting of authority? The press has already had public reports of ongoing abuse at Guantanamo, and yet the White House remains silent. What did Obama think when he saw the redacted memo addressed to... him? What are we to make of this?

Besides the injustice and substantial issues involved in the Binyam Mohamed case, something bigger seems at stake here. The stink around this case grows and grows larger and larger with every day. With the passage of the stimulus bill (for better or worse), let us hope more attention will be drawn to what is going on with national security, as the government scrambles, or so it seems, to cover up crimes of hideous magnitude.